In Evans v Evans [2019] JOL 42083 (KZP), the parties were married out of community of property with the inclusion of the accrual system. In divorce proceedings, Mr Evans claimed the forfeiture of the benefits of the marriage and Mrs Evans claimed her share of the accrual of her husband’s estate.
In terms of the Matrimonal Propety Act 88 of 1984 parties who intend to get married can exclude community of property and the community of profit and loss by way of an Antenuptial Contract (ANC). In other words, parties will be married out of community of property. Parties can further elect whether the accrual system should apply or not. When parties elect to have the accrual system applicable to the marriage regime, the net commencement value of each party’s respective estate is recorded in the ANC. These values will however only be of importance upon the dissolution of the marriage (death or divorce). The Matrimonial Property Act provides that upon the dissolution of the marriage, the net end value of each party’s respective estate will be calculated. Each party’s commencement value will then be subtracted from his/her net end value. The party whose estate showed the smallest growth or no growth at all, has an accrual claim for the value of half of the difference between his/her estate’s accrual and that of his/her spouse.
In this matter, Mr Evans’ counsel argued that the commencement value reflected in the parties’ ANC was not the real value of his estate at the conclusion of the ANC and sought to lead evidence to this effect. The counsel on behalf of Mrs Evans argued that the values recorded in the ANC concluded between the parties is proof of the values and that parties are bound to the values recorded in the ANC.
The Court allowed Mr Evans’ counsel to lead evidence that the commencement values recorded in the ANC were infact incorrect and held that if a party wishes to dispute the amounts recorded in the ANC, that party bears the onus of proving the real values as alleged by him. Mr Evans’ counsel led evidence concerning his actual commencement value and Mrs Evans’ counsel did not dispute the value stated by Mr Evans. As a result, the Court accepted Mr Evans’ evidence in respect of the actual commencement value of his estate.
Since Mrs Evans’ counsel did not dispute the actual commencement value (to which Mr Evans had led evidence), the Court found that there was no accrual in Mr Evans’ estate and as a result Mrs Evans’ accrual claim could not succeed.
Compiled by: Marili Orffer (LL. B, LL. M); source: https://www.lexisnexis.co.za/
LEXISNEXIS SUMMARY:
Persons :: divorce
Evans v Evans
| Case Number: | 4387 / 2017P |
| Judgment Date: | 03 / 06 / 2019 |
| Country: | South Africa |
| Jurisdiction: | High Court |
| Division: | KwaZulu-Natal, Pietermaritzburg |
| Bench: | Ploos van Amstel J |
Keywords:
Family Law and Persons – Divorce – Antenuptial contract – Accrual system – Commencement value of estate
Mini Summary:
The plaintiff sued the defendant for divorce, together with forfeiture of the benefits of marriage and costs. The defendant in turn sought her share of the accrual of the plaintiff’s estate, maintenance and costs.
The parties each pointed to conduct on the part of the other as contributing to the breakdown of their marriage. They agreed that there was no hope of a reconciliation.
Held that the antenuptial contract between the parties provided that community of property and community of profit and loss would be excluded. The provisions of Chapter 1 of the Matrimonial Property Act 88 of 1984, dealing with the accrual system, were to apply to the marriage. In terms of section 3 of the Act, upon dissolution by divorce of such a marriage, the spouse whose estate shows no accrual or a smaller accrual than the estate of the other spouse, acquires a claim against the other spouse for half of the difference between the accrual of the respective estates. In recording the commencement value of each estate, the antenuptial contract stated an amount of R500 000 each. That stipulation was in fact not a reflection of the real values. However, counsel for the plaintiff argued that the parties were bound to the amounts recorded in the contract and it was not permissible to prove a different value. Departing from cited case authority, the court held that the plaintiff was entitled to lead evidence to show that the commencement value of his estate was wrong. Having regard to the actual commencement value of his estate, it emerged that there was no accrual in his estate and the defendant’s claim for a share in the accrual could not succeed.
In respect of the defendant’s claim for maintenance, the court took into account the large discrepancy in the financial positions of the parties and ordered the plaintiff to pay R20 000 a month as maintenance to the defendant.