The cut-off date for determining accrual claims: a cruel decision and a better decision

Abstract

Despite the fact that the accrual system has been in operation for over 26 years, there is very little case law dealing with the operation and principles of this system (see Schulze "Some thoughts on the interpretation and application of section 8(1) of the Matrimonial Property Act 88 of 1984" 2000 THRHR 116 117; Ferreira "Protection of the right to accrual sharing" 2002 THRHR 287). In this note I refer to two recent cases that dealt with the operation of the accrual system but resulted in conflicting judgments. The first is the as yet unreported case of Le Roitx v Le ROILX (case no 1245/2008 (NCK), delivered on 2009-10-30) and the second is MS vNB 2010 3 SA 220 (GSJ). Both cases concern the cut-off date for the determination of accrual claims where marriages are dissolved through divorce. As these cases propose totally different approaches, it may be useful to ascertain what is done in other jurisdictions under similar circumstances. As the current default matrimonial property system in Germany operates very similarly to the accrual system in South Africa, the position in Germany is discussed briefly for purposes of comparison. After the above-mentioned cases have been discussed and German and South African law compared, some suggestions are made and practical pointers provided on how and when information is to be obtained to enable parties to determine accrual claims.