A GUIDE TO FAMILY LAW

A GUIDE TO FAMILY LAW

-Recent Amendments and Applicable Case Law-

By Lezanne Taylor

1.??????????INTRODUCTION

Family law encompasses various important aspects. All aspects, which will be more fully described hereunder, are sometimes construed by society, as elementary, merely referencing, love, family, and the ways of life. Society, when faced with disputes relating to these aspects, come to realize that the applied legal principles relating to concepts such as marriage; divorce; contact; division of estates and maintenance is not as easy as initially thought. This article will provide a simplified guide to the “not – so – easy” family law – concept. ?

2.??????????MARRIAGE

South Africans can choose between three types of marriage as defined by our laws: a Civil Marriage, a Civil Union and a Customary Marriage,?or not getting married at all. All of the mentioned concepts however, finds application in the law, and bears legal obligation. Tying the knot can be an exciting process and experience for the parties involved. Still, it can similarly be stressful and complicated if the parties do not take the time to figure out the legal aspect of marriage and what you need to enter into a marriage. Any parties, and we will hereunder also discuss the various forms of marriages recognised in South Africa, can be entered into with or without a Antenuptial Agreement, the various forms of an Antenuptial agreement will also be referred to in the content of this article, but for sake of completion, we will briefly refer to it now. Parties getting married can get married, in community of property; out of community of property with the accrual, and out of community of property without the accrual. Should parties not want to get married in community of property, they would have to enter into an Antenuptial agreement before the marriage, in accordance with the prescripts below:

2.1???????Prenuptial and Antenuptial Agreements

Both Prenuptial and Antenuptial agreements govern the marital property regime prevailing between spouses in a valid marriage. While in South Africa the most commonly used term is Antenuptial Contract/Agreement, the term Prenuptial Contract is most often used in the United States and other jurisdictions. The purpose of an antenuptial contract is to bring certainty with regards to the matrimonial property system. The latter contract is crucial especially in the event of divorce, maintenance, and devolution of deceased estates.

2.2???????The legal requirements for Antenuptial Agreements

In terms of Section 87 of the Deeds Registries Act 47 of 1937, an?antenuptial contract?has to be executed before a Notary and thereafter registered in a deeds registry within three months, or any such extension a competent Court may condone. The alternative to antenuptial agreements entered into within the bounds of South Africa, is antenuptial contracts entered outside of South Africa which has to be executed according to the law prevailing in that jurisdiction and must be registered with the deed’s registry within six months of execution in such foreign jurisdiction or within such period a competent Court may condone. A distinction must also be made between formal and informal antenuptial contracts. A formal antenuptial contract is one which has been executed and registered in accordance with Section 87 of the Deeds Registries Act 47 of 1937, such formal antenuptial contract is effective against third parties. An informal antenuptial contract is one which has been executed outside the formalities of the Act. It is effective?inter partes, which means only between the parties.

2.3???????Marriages in community of property

Since the introduction of the?Matrimonial Property Act of 1984?spouses that were married in community of property would share the same rights regarding the disposal of the assets of the joint estate . The latter would have bearing on the contracting of debts which lie against the joint estate and the management of the joint estate, subject to certain limitations. Marriages in community of property however brought about requirements that had to be met, an example is a restriction on signing a suretyship on behalf of the joint estate. If one spouse would want to incur credit on behalf of the joint estate, the credit provider has an obligation to insist that the spouse binds himself or herself as surety, to guarantee payment. The referred to Matrimonial Property Act, thus obliges a spouse not to bind himself or herself as surety without the written consent of the other spouse.

2.4???????Calculation of the accrual, under a marriage out of community of property with the accrual

In the case of?MJK v IIK[1] , the wife sued for divorce. The wife prayed for an order, declaring that that the assets of three trusts and a Close Corporation be considered in determining the value of the accrual in terms of sections 3 and 4 of the?Matrimonial Property Act 88 of 1984?(the Act). ?The wife contended that the trusts and the Close Corporation were her husband’s alter ego. The Matrimonial Property Act provides that during the marriage, each spouse, builds up their own estates, whereby each party retains control over their own property, and is responsible for their debts. Once the marriage is however dissolved, either through death or divorce, the parties are to share equally in the assets obtained during the marriage, which constitutes the accrual. The Accrual is calculated by virtue of the difference in the net starting value and the net final value of the estate of each spouse with the exclusion of inheritances, legacies, and donations.

“…The Court disagreed with the wife’s suggestion that it should regard the assets of trusts of which the husband was a trustee and the Close Corporation of which he was a sole member as belonging to the husband to determine the accrual of his estate. It rejected her suggestion that he transferred the assets with the dishonest and fraudulent purpose of frustrating her claim to the accrual of the estate. The High Court disagreed that it should pierce the veneer of all three trusts to determine the accrual of the husband’s estate as he used the trusts as his alter ego. The Court agreed with the husband that estate planners have for years used trusts as a convenient tool for estate planning. His principal objective in creating the trusts was to protect their assets to care for his wife and children, mainly their mentally challenged daughter. The court dismissed the wife’s claim for an order that the assets of the trusts and the Close Corporation be used to calculate the accrual of the husband’s estate…”

?????????????2.5???????Changing your Matrimonial Property Regime

In respect of the discussed marriage regimes, it is noteworthy to state that the law does provide for a marriage regime to be changed. In terms of section 21 of the Matrimonial Property Act, Act 88 of 1984, spouses may apply to the High Court in order to change their Matrimonial Property Regime according to their wishes. The Court would have to be convinced that there exist good reasons for the proposed change, that sufficient notice has been given to all the relevant creditors and that no person will be prejudiced by the proposed change.

?????????????2.6???????Unreasonable clauses in a marriage contract [Antenuptial Contract]

When concluding an Antenuptial contract, it is not a case of everything goes. Spouses are generally free to include any provision in their antenuptial contract, however, the provision may not be contra bonos mores, against nature, reason, public policy, prohibited by any law or purport to take over the powers of the court. Clauses of this nature will be null and void. Examples of unreasonable, against public policy and unlawful clauses, is aspects such as

2.6.1????Contracting that a spouse may not work, restricting a spouse’s right to freedom, by forcing a spouse to live in a particulars area, contracting that a dispute in relation to the marriage is subjected to arbitration, or stating/ forcing a person to live together as husband and wife, after the marriage.

3.??????????CURRENT MARRIAGE LEGISLATION & CASE LAW

3.1???????All marriages, as well as civil unions are currently regulated through three different pieces of legislation:

(i)?????????The Marriage Act providing specifically for monogamous marriages in case of opposite-sex couples;

(ii)????????The Recognition of Customary Marriages?Act providing for polygamous marriages for opposite-sex couples; and

(iii)??????The Civil Union Act that includes monogamous partnerships for both same and opposite-sex couples.

3.2???????Customary Marriages are regulated by the?Recognition of Customary Marriages Act?(“RCMA”). Spouses are required to register their marriage within three months of the ceremony. However, according to the RCMA, not registering a Customary Marriage does not invalidate it. The requirements are there merely to provide proof that the marriage took place, should there be doubt later:

The mentioned RCMA stipulates the requirements for a Customary Marriage to be valid:

(i)?????????the parties must be eighteen years and older;

(ii)????????the parties must consent to entering into a Customary Marriage with each other; and

(iii)??????The marriage must be negotiated and entered into or celebrated in accordance with customary law.

?????????????3.3???????Muslim Marriages

On 28 June 2022, the Constitutional Court confirmed the Supreme Court of Appeal (SCA) ruling in?Women’s Legal Centre Trust v President of the Republic of South Africa and Others[2], which legally recognised Muslim marriages and declared certain sections of the?Marriage Act?and?Divorce Act?unconstitutional

“…The Women’s Legal Trust Centre brought the application, the application was as a consequence of Muslim women, who were married in terms of Sharia Law, complained that they had been discriminated against because they had no legal protection. Some of the omitted aspects in relation to these types of marriages, applicable to the facts of this case, related to a two Muslim woman, the one had been excluded from inheriting from her late husband’s estate and the other had been precluded from benefiting from her husband’s pension fund. Numerous cases before the courts have highlighted the impact on Muslim marriages as a result of being excluded from complete legal protection. In casu the Constitutional Court confirmed that the Marriage Act and the Divorce Act are both unconstitutional in both failing to recognise Muslim marriages, which are not registered as civil marriages. Furthermore, both Acts infringe on the constitutional rights to equality, dignity, and court access. They also conceded that children’s rights are also infringed in this regard…”

“…In conclusion, the court suspended the declarations of invalidity for 24 months to allow for the legislation to be amended. It ruled that pending this, the provisions of the Divorce Act shall apply to all marriages from 15 December 2014 as if they are out of community of property…”

4.??????????DIVORCE

Divorce is the separation of the party’s bond, as well as the termination of the applicable marriage regime the parties entered into in respect of their marriage. Just to recap, the parties could have entered into a marriage, in community of property, out of community of property with the accrual and out of community of property without the accrual. Each of these marriage regimes, finds different application in respect of dissolution of the marriage either by death or divorce. The various implications will be discussed briefly hereunder:

4.1???????Marriage in community of property

A marriage in community of property means nullifies separate estates and creates a joint estate between the parties. Each party consequently becomes entitled to 50% of the joint estate. All of the assets and liabilities of both parties will become part of the referred to joint estate, subject to a few exceptions. When this type of marriage is dissolved the joint estate will be divided in half with each party being entitled to their half.

4.2???????Marriage out of community of property, without the accrual

This marriage regime is brought about by virtue of an agreement, which is referred to as an Antenuptial agreement (refer to paragraphs 2.1 and 2.2 supra). In this instance, the parties will retain their separate estates after the marriage. Parties are further allowed to perform any and all legal actions relating to their separate estates as they deem fit without the obligation of first having to obtain the consent of the other party. When the marriage is dissolved there will be no division of any joint estate and there will also be no accrual to be calculated with neither party being entitled to an accrual claim. Basically, the latter entitles each of the parties to retain their separate assets and be liable for their separate liabilities.

(i)?????????On 11 May 2022 the Pretoria High Court declared that Section 7(3)(a) of the?Divorce Act, 70 of 1979, is inconsistent with?the Constitution?and invalid to the extent that the provision limits the operation of Section 7(3) of the Divorce Act to marriages out of community of property entered into before the commencement of the?Matrimonial Property Act. Simply put, individuals married out of community of property without the accrual will now be entitled to claim a redistribution of assets despite the content of their signed antenuptial contract.

(ii)????????A redistribution claim, however, is not an automatic entitlement. A spouse instituting a Section 7(3) claim will still need to prove their direct or indirect contributions made towards the estate of the other spouse to be successful. The court hearing such an application will then have to decide upon not only whether such a spouse is entitled to a claim, but also the extent thereof which may differ greatly from matter to matter. The relief granted in the application will have far reaching consequences on the patrimonial consequences of many marriages. The outcome of the application is as such of significant importance to the South African society at large.

4.3???????Marriage out of community of property, with the accrual

All of the principles as set out above under the Marriage out of community of property, without the accrual, remains applicable here, with the exception that the accrual system will be applicable. In broad terms, the accrual system means that the parties to the marriage will, at the dissolution of the marriage, share in the growth that accrued to their estates during the existence of the marriage, to the extend that the party whose estate grew the least, will be entitled to half of the difference in growth accumulated by the other party. The calculation of the accrual of the respective estates takes into consideration various aspects[3].

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??????????????????????????What if a spouse goes missing

Where a spouse’s whereabouts are unknown, one may institute a divorce by applying to the court for substituted service before the summons is issued. Substituted service gives a party a legal recourse through advertisement in a newspaper publication, an email, fax or a social media post or message. In terms Rule 9(9)(a) of?Magistrate Court Rules, service should be effected in a specific way, the prescribed service is elaborated upon in the case of substituted service.?In terms of Rule 10 Magistrate Court Rules, if service of process or document whereby proceedings are instituted cannot be effected in any manner prescribed in rule 9, or if the process or a document whereby proceedings are instituted is to be served outside the Republic, the person desiring to obtain leave to effect service may apply for such leave to a presiding officer, who may consider the application in chambers. In?Ex parte: Mos Wear (Pty) Ltd; In re: An application for substituted service of documents in respect of a name dispute application[4] , the court stated that ‘substituted service is ordered when the Defendant is believed to be in the Republic but one of the standard forms of service set out in the rules cannot be affected. The court then gives directions authorising some form of “substituted service”.’ There are a few things one ought to do before applying for substituted service. Firstly, the divorcing spouse will need to have the Defendant’s last known address. Secondly, the divorcing spouse will have to confirm that address and interview the people living there about the Defendant’s whereabouts. Thirdly, the divorcing spouse will have to ask known relatives, friends, former employers, and any other person who may know the Defendant about the Defendant’s whereabouts. Fourthly, the divorcing spouse will have to make attempts to find the Defendant on social platforms such as Google, Facebook, and Twitter. Finally, once all these avenues have been explored, the divorcing spouse will have to write a written summary of his/her efforts in an affidavit to show that all means to locate the Defendant were tried. Thereafter, the Plaintiff must appoint a tracing agent in an attempt to locate the Defendant. Once all these avenues have been exhausted, the spouse will be entitled to make an application for substituted service and show that all avenues to locate the Defendant have been exhausted. Consequently, it is clear that an estranged spouse cannot be divorced, if the above is not complied with.

5.????????CHILD LAW

Child law, and the right of children has a plethora of applications in the law. The concept of Children’s rights can be applied to the birth of a child, paternity, the right of a parent to a child, maintenance and contact in respect of the said child to mention only a few. The right of a parent to have contact to his or her child, is contained in the Children’s Act, whereas maintenance places a duty on parents to financially support their children.?Should a parent be unable to support his or her child, the concept of grandparents’ duty to support grandchildren becomes applicable.

5.1???????The Birth of a child

Generally, it is accepted that a child has to be registered once such child is born. Practice is either that the father or the mother registers the child at Home Affairs in compliance with legislation. However, recently, in?Centre for Child Law v Director-General: Department of Home Affairs and Others[5]?the Full Court of the ECG in Grahamstown, declared section 10 of the?Births and Deaths Registration Act 51 of 1992?(the Act) invalid and inconsistent with?the Constitution?to the extent that it prohibits an unmarried father from giving notice of the birth of his child under his surname, in the absence of the child’s mother or without her consent. ?Section 9(1) of the Act provides for the notification of the birth of any child ‘born alive’. Section 9(2) provides that this notification is ‘subject to the provisions of section 10’. Section 10 deals with the notification of the birth of a child born out of wedlock and made the exercise by an unmarried father of his right under section 9(1) contingent on either the mother’s presence or her consent. In?Centre for Child Law v Director General: Department of Home Affairs and Others[6]?2022, the CC by a majority (per Victor AJ with Jafta, Khampepe, Madlanga, Majiedt, Mhlantla, Theron and Tshiqi JJ concurring) sets out reasons for

“…finding that section 10 differentiated unjustifiably between married and unmarried fathers in relation to registration of the birth of a child in the surname of the father, which amounted to unfair discrimination. The retention of section 10 of the Act would undermine the unmarried father’s right to dignity. It implied that an unmarried father was not entitled to be treated as worthy of registering the birth of his child with his surname in the mother’s absence merely because he and the child’s mother were not married. Section 10 was manifestly inconsistent with the rights to equality, dignity and the best interests of the child and had to be severed in its entirety. Because section 9(2) stated that it was ‘subject to the provisions of section 10’, that proviso had similarly to be severed. An order was made that the declaration of invalidity would take effect from the date of the order...”

??????????????????????????5.2???????Child Maintenance

(i)?????????It is clear from legislation that both parents have a duty to maintain the child/children according to their respective means.?Such duty exists irrespective of whether the child has been adopted or born in/out of wedlock. The Courts in respect of child maintenance ventures on an investigative - journey in regard to the referred to “respective means” of the parties and are ad idem that what is “reasonable” will depend on the family’s (i) standard of living, (ii) their respective income and the (iii) cost of living, the child/children has/have become accustomed to. The standard of living usually determines whether expenses for recreation, and secondary- and tertiary-level education will be awarded. An order in respect of maintaining a child/children may be awarded either by virtue of a divorce order (incorporating the maintenance and contact to the children); or may be an order by a maintenance court by virtue whereof any party acting on behalf of a child, whom has a right to maintenance, may approach the court and institutes proceedings against the other party (parent) for contribution to said maintenance of the child/children.

(ii)????????Once such order has been made by a competent court, having jurisdiction to entertain such matters, the order will remain in existence, until such time, any of the parties approaches a court for a variation, reduction or setting aside of the existing order. A variation may be brought on grounds such as a “material change in financial circumstances”.

(iii)??????Section 18 of the Children’s Act 38 of 2005 states that the parental responsibilities and rights in respect of a child include the responsibility and the right to contribute to the maintenance of the child. A child is entitled to reasonable maintenance, which maintenance is a term used to describe a party’s duty to provide for clothing, housing, dental and medical care, education, and training, and, where applicable, recreation. Parenthood automatically results in the obligation of both parents to support a child, this obligation is a common law duty that arises on the child’s birth and is also provided for in s 15(3)(a) of the Maintenance Act 99 of 1998, regardless of whether the child is born in or out of wedlock (see S v Badenhorst 1997 (1) SACR 311 (W)).

(iv)???????This primary duty of a parent (s) to support the child is an obligation which will continue until the child becomes self-supporting. Should one of the child’s parents pass away, the primary duty to maintain the child will become vested in only the surviving parent. However, if both parents are unable to support the child, this obligation will be extended, or will pass to the grandparents of the child. Should the grandparent (s) however also be unable to?support the grandchild (ren) the primary duty to support will pass on to the siblings of the child only if the grandparents have passed away or if they do not have sufficient means to provide support.

(v)????????Legally and in principle, the obligation of a parent to support a child only terminates on the child’s death and not upon the parent (s) passing away. Since children retains the right, in the latter instance to still claim maintenance from the deceased parent’s estate[7]

Hierarchical duty to Support

(vi)???????The common law recognises a hierarchical duty of support[8], whereas the duty to support rests on the primary caregiver, the parents first, thereafter?the duty of support falls to grandparents, and failing them, great-grandparents – in that ascending order – before considering relatives in the collateral line such as siblings. In Barnes v Union and Southwest Africa Insurance Co Ltd[9], the court found that there is an ‘order of priority’. The court went further to explain that should parents not be able to support their children, the duty to support falls on paternal and maternal grandparents. In Petersen v Maintenance officer, Simon’s Town Maintenance Court, and Others[10], the court affirmed the obiter dictum in Barnes v Union and Southwest Africa Insurance Co Ltd by recognised that paternal grandparents have a duty of support towards a grandchild. In FS v JJ and Another[11] the Supreme Court of Appeal found that a parent’s rights and responsibilities ‘outrank’ those of grandparents and on that basis, it overruled a ‘care order’ that had been issued in the grandparent’s favour.

??????????????????????????5.3???????Maintenance for Adult Dependant Child

Many of our High Courts have handed out conflicting judgments when it comes to the issue of whether a parent can claim maintenance on behalf of a child who has reached the age of majority but is still financially dependent on his or her parents. The Supreme Court of Appeal in Bloemfontein has given clarity to the issue in the case of?Z v Z[12]?and ruled that

“…a parent can claim maintenance for an adult dependent child from the other parent upon divorce.?In the matter before the court the mother) and the father were married to each other and at the time of divorce had two major children born of the marriage. The mother-initiated divorce proceedings against the father and claimed, inter alia, maintenance for the major children. The father raised a special plea alleging that the mother lacked locus standi to lodge the claim for maintenance on behalf of the major children. The mother approached the Supreme Court of Appeal, appealing against an order of the Eastern Cape High Court, relying on section 6 of the?Divorce Act?which she contended gives her the capacity to claim maintenance of behalf of the major dependent children. The Supreme Court of Appeal held that section 6 of the Divorce Act is clear and should be read as is, as it serves as a safeguard to the welfare of both adult dependent and minor children of a marriage. The court further stated that there is no requirement for an adult dependent child to be joined as a party to the divorce proceedings, since the court order will only be binding on the parents…”

??????????????????????????5.5???????Rights to a child - Sperm donors and their rights regarding the child

A new phenomenon, allowing opportunity to parents that are unable to conceive, or who chooses not to, is one ‘known donor agreement’, where sperm is donated. The legal consequences that flow from such agreement is still unknown in our legal landscape. The recent case of?QG and Another v CS and Another?(GP)[13] (Kollapen J)?however gives some clarity in this regard:

(i)?????????In that matter, a lesbian couple were seeking the help of a sperm donor to conceive a child. The first applicant in the matter confirmed he will be the sperm doner. The parties entered into a known sperm donor agreement in terms of which the respondents were established as the legal parents of the donor-conceived child. The first applicant was barred from obtaining parental responsibilities and rights in relation to the donor-conceived child. The applicant after interaction with the child, came to the realisation that he wanted to play an active role in the child’s life. Conflict pursued and the first applicant sought an order in terms of which he would be granted interim access to the child whereby he would be entitled to have contact with the child at certain agreed on times. The primary objective of the first applicant was to obtain guardianship in relation of the child.

(ii)????????South African Law

Sections 23; 40 and 26(2) of the Children’s Act, Act 38 of 2005 plays an important part in regard to this matter. It is trite in South African law that these sections dictate the rights and responsibilities in regard to gamete donors, which stipulates that the gamete donor relinquishes any claim to parenthood, and the attendant rights and responsibilities that come with it. Accordingly, a person does not qualify as a person having an interest in the care, well-being or development of a child as provided for in ss 23(1) and 24(1) of the Act because of a genetic link caused by gamete donation

????????????????????????????????????????(iii)??????Order of Court

The court found that the relief sought by the applicants had to fail. The court emphasised that the reason for such failure was not based on the fact that the applicants were ill-suited in their commitment to the child but rather in recognition of the family that the respondents had made for themselves in their relationship with their child, were intimate and special and were both worthy and deserving of constitutional protection from outside interference, even if the latter was well-meant. The granting of the contact rights sought would, therefore, not be in the best interests of the child.

??????????????????????????5.6???????Rights of a non – parent

The position of the ‘non-parent’ is increasingly becoming more relevant in our day and age. ‘Non-parents’ are described as those individuals who play a role of caretaker in the lives of minor children or have involvement with the child but do not have the same legal rights as parents regarding decisions about the child and their life.

This concept recently was raised in the case of RC v SHC?(GJ)[14]

This concept is evaluated against the Children’s Act 38 of 2005. Section 23 of the Act specifically deals with the ‘assignment of contact and care to [an] interested person by [an] order of court’, and s 24 subsequently deals with the ‘assignment of guardianship by [an] order of court’.

The judgment of?RC v SHC?was delivered on 18 March 2022, the applicant had served in a ‘fatherly role’ to the minor child, B, after being romantically involved with the respondent from the date of B’s birth until the age of four. The parties shared a communal home for two and a half years. The relationship had since broken down. The applicant, not being the legal father of B sought legal relief based on ss 23 and 24 (in two parts) of the Act to maintain his role in the life of the minor child. The respondent has two minor children, B and an 11-year-old son, D. In the interests of both children involved, the considered outcome effects the livelihoods of both children. In the two-part consideration, the court scrutinised the best interest of the children. The applicant had greatly contributed to the lives of both minor children in terms of financial support and had undertaken to continue with his contributions in terms of B, should the application be successful.

“…The court concluded that the applicant had not satisfied the fact that he has the necessary?locus standi?to bring the matter to the court in the first place. Although, he has inserted himself into the life of the minor children and maintained a fatherly relationship up until this relationship with the respondent broke down, legal rights pertaining to the children should not be awarded unless it is in the utmost best interest of the child. The court concluded that the applicant had not established that he is a person with the necessary interest to seek the relief that he does in respect of s 23. Due to the applicant’s relationships with the respondent and D having a negative impact on their respective relationships with B, it further followed that allowing the applicant to obtain legal rights in terms of Part A of the application is not in the best interest of the child, or both children in this case. The court, therefore, dismissed Part A of the application for care and contact of B…”

6.?CONCLUSION

This guide is only the tip of the iceberg, it is clear from the concepts listed in this article, that family ?law, and the concepts pertaining thereto is not simple, or should be simplified. Parties in any situation relating to any aspect of family law, be it marriage, divorce, the birth of a child, maintenance, or the rights to a child, should seek proper legal advice and guidance, to not be caught off guard in regard to the various pitfalls seen in relation to these concepts.

?

Lezanne Taylor

2 September 2022

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[1] [2022] ZASCA 116

[2] Women's Legal Centre Trust v President of the Republic of South Africa and Others (CCT 24/21) [2022] ZACC 23 (28 June 2022)

[3]The parties will have to state the commencement value of their estates either in the Antenuptial Agreement itself, or in a separate statement. All calculations are done at the time of dissolution of the marriage and considers (1) the value of their estates (2), the commencement value of each estate will be adjusted to make provision for any change in the value of money (3) adjusted commencement value of each estate is subtracted from the value of the respective estates as at the end of the marriage. (4) The party with the smaller accrual will have an accrual claim against the party with the larger accrual (5) Certain assets are excluded from the accrual calculation – (i) inheritances, legacies, and donations (ii) assets which are specifically excluded by the Antenuptial Agreement itself (iii) damages received, other than damages for patrimonial loss; (iv) donations between spouses, excluding donations which are made in expectation of death.

[4] (CT005April2017) [2017] COMPTRI 44 (25 April 2017)

[5] 2020 (8) BCLR 1015 (2020 (6) SA 199) (ECG)

[6] Centre for Child Law v Director General: Department of Home Affairs and Others?2022?(4) BCLR 478 (CC)

[7] see Ex Parte Insel and Another 1952 (1) SA 71 (T); Carelse v Estate de Vries (1906) SC 532; Goldman NO v Executor Estate Goldman 1937 WLD 64; Ex Parte Insel and Another 1952 (1) SA 71 (T); Lloyd v Menzies, NO and Others 1956 (2) SA 97 (N)).

[8]See Voet (Percival Gane edition of 1829, vol 4 (Durban: Butterworths & Co 1956) 363-364

[9]1977 (3) SA 502 (E) at 510

[10]2004 (2) SA 56 (C)

[11]2011 (3) SA 126 (SCA)

[12](556/2021) [2022] ZASCA 113 (21 July 2022)

?[13] unreported case no 32200/2020, 14-4-2021

[14] (Unreported case no 45327/2021, 18-3-2022) (Fisher J).