The accrual system remains one of the most balanced and equitable matrimonial property regimes available to South Africans, but it is also one of the most misunderstood once a marriage ends. The principle is intuitively fair: what you bring into the marriage is yours; what you build during the marriage is shared, at least in respect of the growth of each estate. However, the complexity lies in the detail. If your ante-nuptial contract (ANC) is vague, if commencement values were poorly recorded, or if major assets such as retirement funds and trusts are not properly understood, the accrual calculation can become a source of avoidable conflict.

Understanding your ante-nuptial contract

Every marriage subject to accrual is supported by an ante-nuptial contract (ANC). The ANC does not merely record your choice to exclude community of property – it also defines the rules of engagement for your financial partnership. Importantly, spouses have wide freedom to tailor the automatic consequences of accrual, including recording commencement values and excluding specific assets from the calculation.

With this in mind, if you are divorcing, your first reference point should be your ANC, as this contract will confirm whether accrual applies, what each spouse’s commencement value was, and which assets, if any, were intentionally excluded. Where the ANC is silent on exclusions, the default statutory framework applies.

Fixed property in your marriage

Whether a property is held in one spouse’s name or jointly generally makes little difference under accrual, because what matters is the net value of each spouse’s estate at the start and end of the marriage. Where one spouse owned property before the marriage, that value should have been recorded as part of their commencement estate. On divorce, only the growth in value during the marriage is relevant for accrual purposes. If the property was inherited, it is likely to be excluded from the accrual unless the ANC or the Will stipulates otherwise.

Debt and the accrual

One of the advantages of accrual is that each spouse’s pre-marital debt remains their own. The calculation of a spouse’s accrual is based on the net value of their estate at dissolution compared to the inflation-adjusted net commencement value. Crucially, the right to share in accrual is a contingent right during the marriage. This means that it is not transferable, not attachable, and does not form part of a spouse’s insolvent estate while the marriage subsists. This offers an important layer of protection against creditors and reinforces the principle that accrual is only measured at dissolution.

Where one spouse’s conduct seriously prejudices the other’s right to share in accrual, the prejudiced spouse may apply to the court for immediate division of the accrual, without needing to wait for divorce proceedings. In such cases, the court may order that the accrual system no longer applies going forward. This relief is particularly important where one spouse is deliberately dissipating assets, incurring reckless debt, or manipulating the timing of transactions to reduce the value of their estate.

Retirement funds and pension interest

For many couples, retirement savings are among the largest assets on the balance sheet. Under accrual, the value of a spouse’s retirement interest is generally included in their estate unless expressly excluded in the ANC. The Divorce Act provides that pension interest is deemed to form part of the member spouse’s assets for purposes of determining patrimonial benefits at divorce.

Recent legislative changes – particularly the implementation of the Two‑Pot Retirement System – have changed how “pension interest” is defined for divorce orders granted on or after 1 September 2024. A new definition in the Pension Funds Act now applies uniformly across all retirement funds and is calculated as the member’s benefit in the fund, determined in terms of the fund rules, on the date of the divorce order. This PFA definition overrides the older definition in the Divorce Act for any divorce order dated 1 September 2024 or later, which means retirement annuities are now aligned with other funds, and the historic ‘contributions plus simple interest’ RA formula no longer applies to post‑1 September 2024 divorce orders.

In practice, this change is designed to create consistency and reduce the artificial distinctions that previously complicated accrual calculations involving retirement annuities. It also means that divorcing spouses and their advisers need to be careful about wording in consent papers and divorce orders, particularly where exact fund identification and calculation dates are concerned.

Trust structures

Trusts are legitimate estate planning vehicles, but they can become contentious during divorce, where one spouse appears to have shifted personal wealth into a trust with the intention of reducing their accrual exposure. South African courts have shown a willingness, in appropriate circumstances, to look beyond the trust structure where it is effectively the alter ego of a spouse and has been used to frustrate the other spouse’s financial claim. This is not a simple allegation to prove, and it generally requires a detailed factual enquiry into control, benefit, intention, and the real substance of the arrangement. Where a court is persuaded that the trust is being abused, it may take the trust assets into account when determining a just and equitable outcome between the parties.

The accrual calculation

In its simplest form, the accrual is the net increase in the value of each spouse’s estate from the start of the marriage to the date of divorce. The process is broadly as follows: determine each spouse’s net estate at the date of divorce, including assets acquired during the marriage such as property, vehicles, investments, business interests, cash, policies and retirement interests, and deduct liabilities incurred during the marriage. Thereafter, remove excluded assets as per the ANC and the statutory exclusions, including qualifying inheritances and non-patrimonial damages. Identify the commencement value of each estate as recorded in the ANC and adjust it for inflation. In this regard, the Act provides that the weighted average CPI serves as prima facie proof of changes in the value of money between the start and end of the marriage. Calculate each spouse’s accrual by subtracting the inflation-adjusted commencement value from the net estate at dissolution, and then compare the two. The spouse with the smaller accrual (or no accrual) will have a claim for half of the difference between the two.

The reality is that valuation disputes often arise around private businesses, property with uneven capital improvements, and retirement interests where documentation is incomplete. This is why an orderly paper trail, regular financial reviews, and professional support during settlement negotiations can materially reduce both legal costs and emotional strain.

While the accrual system is not perfect, it remains a principled attempt to balance independence with fairness. As such, for couples who are still planning their marriage, a carefully drafted ANC is one of the most important financial documents they will ever sign. For couples facing divorce, a clear understanding of exclusions, inflation-adjusted commencement values, and the updated rules around pension interest can turn a stressful process into one that is at least rational, equitable and defensible.

Have a super day.

Sue