Abstract

Up until the judgments under consideration no serious doubt had been expressed that only the qualified portion of the calculated accrual displayed as part of the net value of the debtor’s estate at the dissolution of the marriage that exceeds the net value of that estate at the commencement of that marriage should be susceptible to fulfilment of the resulting obligation upon dissolution of the marriage under the Matrimonial Property Act 88 of 1984. In the normal scenario governed by chapter 1 of the act, there is no question of any right of action that vests for a spouse or both spouses before the dissolution of the marriage. Subject to the provisions of section 8(1), a claim for accrual sharing arises only at the dissolution of the marriage. But for the special provisions contained in section 8 of the act, there can be no question of a spouse’s entitlement to legal aid to protect a presumed expectation of accrual sharing before the unique right of action is acquired with dissolution of the marriage. If it were otherwise, there would have been no need for section 8’s exceptional arrangement, because then there would have been a so-called conditional right of action for both spouses from the outset of the marriage – and that is precisely not the legal position governed by section 3 of the act. The well-known rule reads “ubi ius ibi remedium” and not “ubi spes ibi remedium”.
In the unopposed submission on behalf of the daughter of the litigant in casu as the sole beneficiary of the trust founded by her parents years ago, the only way in which her mother’s claim for more than R3,3 million against her father as the claimant’s alleged right to accrual sharing can be met, is to compel the trustees to transfer the trust assets into the estate of the father as alleged debtor. The inflated claim of the mother is founded solely on the fact that the auditor Heyns deemed the trust assets part of the net value of the debtor’s estate at the dissolution of the marriage. He deemed these to be assets of the father as one of the trustees, but in the process ignored the fact that the mother is the second trustee and that the assets of the trust were accumulated by both trustees over more than 25 years since the birth of their children as intended sole beneficiaries and to the express exclusion of any benefit for the trustees themselves. This is not a case where the assets were underhandedly transferred from the father’s estate after litis contestatio at the commencement of the divorce proceedings as part of a scheme to jeopardise his spouse’s claim under accrual sharing. The personal net value of the qualified accrual in the estate of the father as alleged debtor at the dissolution of the marriage is valued at an amount that is much lower than the claim by the mother and cannot meet the claim for the alleged R3,3 million.
The problem ensued from the fact that, in terms of the divorce order and the incorporated deed of settlement the assets of the trust were erroneously deemed part of the father’s estate. In his judgment against the daughter’s application to be joined as an interested party as the sole beneficiary of the endangered trust assets, Nxumalo J displayed a different understanding of the legal position: “The canard in the applicant’s argument is that it skids the fact that neither the impugned deed and/or report and/or order, in any way divest the Trust of any of its assets. Its assets remain its own and are only taken into consideration for purposes of determination of the accrual of the first respondent’s estate. It is trite in our law that persons such as Trustees, who stand in relation to others in positions of confidence involving duties to protect the interests of other persons are not allowed to place themselves in such positions that their interests conflict with their fiduciary duties. The interests of the Trust could thus not be prejudicially affected by the impugned order” (par 11 – emphasis added).
The final order by Phatshoane DJP, however, nonetheless reads as follows:
“1 The final award of Mr André Heyns, dated 30 July 2021, in respect of the determination of the accrual in the applicant and respondent’s respective estates and attached to the applicant’s founding affidavit as Annexure ‘C’, is made an order of this Court.
2. The respondent is ordered to pay R3 311 897.00 to the applicant in respect of the applicant’s accrual claim against the respondent in terms of the provisions of Chapter 1 of the Matrimonial Property Act 88 of 1984. …”
Clearly this court order is premised on the assumption that the due amount of R3,3 million must somehow be transferred to the claimant, but the source of that amount is not mentioned in the order if the trust assets are not to be prejudicially affected as had been held by Nxumalo J. Some judges apparently believe in wonders and assume that the money will miraculously appear in the debtor’s bank account, or in the fairy tale of debtors blessed with the mythical Midas touch.
It is submitted that the obligation regarding accrual sharing cannot imply that the debtor must incur additional liability and be obliged to borrow money from a third party as credit provider to comply with the obligation towards his/her ex-spouse founded on the latter’s inflated claim for accrual sharing. The act does not provide for any court under the banner of alleged “fair interpretation of accrual sharing” to contravene the express provisions of sections 4(1)(b) to section 9 of the Matrimonial Property Act 88 of 1984 in order to include for accrual sharing purposes the explicitly excluded assets of the debtor. Assets expressly excluded from the qualified accrual of the alleged debtor, such as the initial value of his estate, any bequests, donations or solatium received during the marriage, cannot be renamed as ancillary objects for recourse by artificially inflating the accrual claim if the sum of the calculated qualified assets is insufficient to meet the expectations of the claimant. Only the qualified portion of the calculated accrual available in the end value of the debtor’s estate should be susceptible for fulfilment of the resulting obligation to accrual sharing upon dissolution of the marriage. No other assets of either the deemed debtor, or of a third party like the trust in casu founded for the exclusive benefit of the children from the marriage, are susceptible to meet the expectations of the claimant. A contrary decision is not based on an interpretation of the law but smells like a blatant distortion of the law.
Hard cases make bad law, and this is an example of the mischief that can follow from an unsubstantiated perception of fair accrual sharing. It is submitted that a sure way to avoid such unsatisfactory outcomes will be if practitioners would consider when drafting antenuptial contracts where parties opt for accrual sharing to insert a clause regulating periodic (eg yearly) setoff of the accrual sharing right/obligation between spouses as is provided for in the Amsterdam model. One of the advantages of such periodic setoffs is precisely that what had already been set off while the marital harmony was still intact between the spouses cannot later disappear from the end value of an estate under questionable circumstances when a divorce is looming. At the dissolution of a marriage governed by periodic setoff only the last period’s accrual sharing can still be the possible object of diverging calculations between the litigants. Accrual sharing is per definition limited to sharing the qualified accrual that is available in the estate of the debtor as part of the end value of the estate at the time of calculation – nothing more. Assets that are not at hand in the estate allegedly obliged to accrual sharing cannot form part of the calculated accrual at the dissolvement of the marriage.