How to protect your assets in the event of divorce | Fin24
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How to protect your assets in the event of divorce

Oct 13 2016 07:37
Lameez Omarjee

A Fin24 user wants to know if his assets will be subject to accrual claims in the event of a divorce.

He writes: I am a divorcee and I am about to get married again. I have a property which I bought five years ago, and I am renting it out under my name. My future spouse and I have agreed to marry out of community of property, with accrual.

I want to know if she will be able to claim accrual on my current property later if it comes to a divorce.

I also have investment shares, will she be able to claim accrual in the event of a divorce?

Prof. Wesahl Domingo, associate professor of family law at Wits University responds:

To protect his shares and property, he needs to exclude these assets from his ante-nuptial agreement.

If he does not exclude these assets in the ante-nuptial contract, then his ex-wife will be able to claim an accrual amount in the event of a divorce.

These assets need to be excluded from the commencement value of assets for the accrual calculation. This means if he sells his property or if he sells his shares, his wife will have no claim to the proceeds as they will not fall within the accrual amount.

In a marriage out of community of property, with accrual, the value of assets of both parties is recorded at the commencement of the marriage. At the end of the marriage the growth in the value of these assets is recorded. The difference between the final value of assets and the commencement value and liabilities is calculated and then halved.

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, according to the Matrimonial Property Act. Certain things can be excluded from accrual such as inheritance and property.

The Fin24 user can also refer to the Matrimonial Property act s4(1)(b)(ii) for more information. 

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