THE SIGNIFICANCE OF THE “NET ASSETS” DECLARATION IN AN ANTE-NUPTIAL CONTRACT
1. Although the Matrimonial Property Act 88 of 1984 lays down the basic principles regarding the accrual system, the spouses themselves can also reach agreement as to certain aspects of its functioning. The initial value of a spouse’s estate at the time of marriage can be declared in an ante-nuptial contract. Spouses may also stipulate that the accrual system is to be excluded altogether or that the percentage of the accrual will be other than 50%.
2. Only when the marriage is dissolved will the accrual (increase) be determined. If the one spouse’s estate has shown no accrual or a smaller accrual than the other, the former spouse receives the right to payment of (normally) half the difference between the accrual of the respective estates of the spouses.
3. The starting point is the monetary value of all the assets of a spouse at the commencement of marriage less the monetary liabilities of such spouse. However the spouses are entitled to stipulate in their ante-nuptial contract that certain assets are to be excluded in calculating the initial value of the estate. The values indicated are provisional proof of the commencement value of an estate and are taken to be correct unless the contrary is proved.
4. Because of the principle in paragraph 3 and because often the commencement value needs to be proved ,often many years after the commencement of the marriage, the stipulation of an initial commencement value is to some extent a policy decision by the spouse declaring that value. In other words, spouses will declare their commencement values according to the values of assets presently owned by them that they wish to exclude from the accrual at the termination of the marriage by death or divorce.
5. When a spouse-to-be already owns minor assets such as odd bits of jewellery, furniture, clothing, other personal possessions, small savings accounts and bank balances and even a car of moderate value, not much significance is attached to them and the commencement value is often declared as “NIL”. However, when assets of some significance are owned and the owner spouse-to-be wishes to exclude them from the operation of accrual he will assess their present value and declare that as being the commencement value of his estate. Such assets could be things like immovable property, specialised and significant photographic or hi-fi equipment, a major investment in shares or a business and so on.
6. Therefore, when a party about to enter into an ante-nuptial contract asks the question “should this figure include furniture, jewellery, car etc..?” the answer is: it depends. If the value of the item is significant and the party wishes to exclude it from the operation of accrual, then its value should be included in the declared commencement value of that party's estate. Conversely, if the value is insignificant and it does not really matter at the end of the day as to whether it is included in the accrual or not, then that value may safely be ignored. Even if the value of an asset is substantial, if the party owning that asset does not mind if it forms part of the accrual, then it need not be declared.
7. From the above we can see that although the law does not specifically say so, in practice it is a question of the way in which the owner of the asset feels about the prospect of it being included in an accrual or not. Even then, this would not preclude the owner of the asset concerned who declared the commencement value of his estate as “nil”, from proving at the termination of the marriage that in fact he did own, say, a property worth, say, R 2 million at the time of the commencement of the marriage. The effect of this would be that the property would be excluded from the accrual even though it was not included in the assessment of the commencement value of that party's estate in the ante-nuptial contract itself. This is the effect of the principle that the commencement value stated in the ante-nuptial contract is merely provisional and the real commencement value stands to be proved at the time the marriage comes to an end.