Antenuptial contract with accrual – divorce procedure

When the accrual is included in a matrimonial property regime, each spouse declares his/her estate’s nominal value at the start of the marriage and keeps their assets and liabilities, unless expressly included.

The term “accrual” describes the net increase in the value of a spouse’s estate since the date of the marriage. Put differently, what was yours prior to the marriage remains yours, and what you have earned in the duration of marriage is shared between yourself and your spouse.

The accrual system does not apply automatically to all marriages out of community of property. For the accrual system to apply, the prenup must be drawn up in a specific way. The accrual system integrates a calculation that is applied when the marriage is ended by divorce. The spouses will share the assets during the course of their marriage based on a particular calculation if the marriage ends in divorce.

Following divorce, the spouses retain the assets they owned before the marriage but share in any increases made during the marriage.

If the marriage ends by divorce, then the net estate value (assets less liabilities less excluded assets and/or commencement values) of each estate is determined separately. The larger estate must then transfer half of the difference to the smaller estate.

In other words, at the ending of a marriage under the accrual system, by divorce or by the death of one or both spouses, the spouse whose estate shows no accrual or a smaller accrual than that of the other spouse, must claim for an amount equal to half of the difference.

If the couple’s home was bought during the marriage, it may be sold, with the net proceeds split between the couple. Alternately, either spouse can buy the other out. If the couple goes with the latter option, the transfer of the half-share of the property will be exempt from transfer duty. If the property was bought before the marriage and wasn’t included in the prenup, it will go to the spouse in whose name it is registered.

When going through the divorce procedure, a couple should seek legal advice so that they know their rights in terms of the antenuptial agreement that they initially drew up. The couple should, however, be familiar with the prenup before hiring a mediator to help with the divorce procedure.

The divorce process for an antenuptial contract with accrual is financially longer and more complex than that without accrual.