Divorce - Accrual (De Rebus)

In the case of DM v CM 2022 (6) SA 255 (GJ) the GJ (per Strydom J) dealt with whether an accrual was payable by the defendant to the plaintiff in their divorce action. The parties were married out of community of property, in terms of an antenuptial contract incorporating the accrual system as provided for in chapter 1 of the Matrimonial Property Act 88 of 1984. Plaintiff had declared a commencement value of nil, and defendant one of R 68 746 000.

It was common cause that the declared commencement value of the defendant’s estate, adjusted with the consumer price index, exceeded the value of his estate at the time of divorce, so that it showed no accrual. Plaintiff’s case was she was entitled to prove that the defendant had overstated his estate’s commencement value. In this regard she initially claimed (in her plea to the defendant’s later abandoned counterclaim) that the declared commencement value was ‘false’, but later amended her plea to a denial that it was ‘accurate’. She also claimed that he had alienated assets with the sole purpose of reducing her accrual claim. From these contentions arose the following issues –

• under what circumstances a party may challenge a declared commencement value; and

• proof that alienation of assets affected the accrual calculation at the date of dissolution of the marriage.

As to the first issue, the GJ held that the commencement value was not merely prima facie proof but conclusive – unless attacked on common-law grounds. For that reason, a court would not consider evidence which was led to prove the inaccuracy of such value, unless a case were made out on common-law grounds such as for contractual remedies pursuant to misrepresentation, fraud, duress, or undue influence, etcetera. The remedy of rectification would also be available if the requirements for such a rectification of an antenuptial contract were met. The plaintiff, not having pleaded any of these recognized common-law grounds, the declared commencement value was conclusive.

As to the second, the court held that the intention with which the alienation took place was the determining factor. If it were made to frustrate the accrual claim of a spouse, the value of the asset would be deemed to be part of the alienating spouse’s estate. In this case, the court concluded, the plaintiff had failed to prove that defendant deliberately and intentionally disposed of assets to negatively affect the plaintiff’s accrual claim.