Accrual in Divorce South Africa: 2026 Guide to Calculations, Exclusions, Trusts and Pension Interest

Summary

Accrual is the growth of each spouse’s estate from the start of the marriage to divorce. On divorce, the spouse with the smaller accrual has a claim for half of the difference between the spouses’ accruals. Start values are CPI‑adjusted; inheritances/legacies/donations are generally excluded; donations between spouses are ignored; and pension interest is deemed part of the estate at divorce (with fund payment via a s 7(8) order). Living annuities: the right to future payments can count as an asset for accrual (capital stays with the insurer). Declared commencement values in the ANC are binding unless set aside on recognised grounds.

Quick route: accrual claim in divorce

In divorce, an accrual claim is won or lost on proof. The court needs a clean calculation, reliable disclosure, commencement values, excluded-asset proof and credible valuations for property, businesses, trusts, pensions and loan accounts.

• Start with the ANC and declared commencement values.
• Separate current net estate values from excluded inheritances, donations and assets expressly excluded in the ANC.
• Use financial disclosure and focused valuation evidence before settlement positions harden.
• If you are already married and trying to change the property regime rather than calculate a divorce claim, start with the postnuptial agreement / section 21 route instead.

Source text: Matrimonial Property Act 88 of 1984. Related routes: financial disclosure in divorce, divorce property division, retirement funds and divorce, antenuptial contracts, accrual system guide and postnuptial agreement South Africa.

Contents

1) What “accrual” really is (and when it applies)

• Default rule post‑1984: If you married out of community of property (ANC excluding community), your marriage is subject to the accrual system unless the ANC expressly excludes it. If you married in community, there’s a joint estate (accrual isn’t used).
• Accrual claim at divorce: The spouse with the smaller accrual acquires a claim for half of the difference between the accruals. The right arises on dissolution (divorce or death), is not transferable during marriage, and doesn’t form part of an insolvent estate.

2) The formula, step‑by‑step (with pitfalls and proofs)

Accrual of X = (Net estate at divorce) minus (Net estate at commencement adjusted by CPI).

Then compare the two accruals; claim = ½ × (larger – smaller).

Key practice points:

• Work with credible net values at both dates (assets – liabilities), then apply statutory exclusions (below).
• Replace or substitute assets trace to the original exclusion (see s 4(1)(b)(ii)).
• Keep calculations concise and verifiable for the court.

3) What’s excluded (and what isn’t)

By statute, the following do not form part of accrual (unless spouses, testator or donor say otherwise):

• Inheritances, legacies, donations received during the marriage and replacement assets acquired from them;
• Donations between spouses (neither donor nor donee counts it);
• Damages for non‑patrimonial loss.

4) Commencement values: declarations, CPI, “nil if negative,” and proof

• Proof route: Declare the net value at commencement in the ANC or, if omitted, in a notarial statement within 6 months after marriage (signed by the other spouse and filed with the ANC). Those instruments are prima facie proof of the start value. If liabilities exceeded assets at the start, the value is deemed nil; if no declaration and you can’t prove otherwise, it’s also nil. CPI (Stats SA, Gazette) is used to adjust start values.
• 2025 certainty (SCA, Manelis v Manelis): Where commencement values are recorded in the ANC, those figures are binding (contractual) unless set aside on recognised grounds (fraud, misrepresentation, etc.). The “prima facie” rule in s 6(3) applies to post‑marriage statements, not ANC‑recorded values.

5) Pension interest & divorce in 2025 (the Two‑Pot reality)

• Deemed asset at divorce: Pension interest of a party is deemed part of that party’s assets when determining patrimonial benefits at divorce (with specific caveats). This is the Divorce Act s 7(7) deeming rule.
• Payment by the fund (s 7(8)): The divorce court can order the fund to pay the assigned share to the non‑member spouse; funds give effect to this via Pension Funds Act s 37D. Orders must meet technical requirements (name the fund, specify the portion, etc.).
• Two‑Pot system (from 1 Sep 2024): The Pension Funds Act now contains a new definition of “pension interest” (at account/reserve level) for divorce orders and confirms divorce orders remain enforceable against retirement savings under the new regime. Practically, fund rules determine the member’s benefit value on the date of the court order. Plan the drafting of orders accordingly.
• Ndaba v Ndaba (SCA): Pension interest can be claimed despite omission in the decree, but you’ll need to amend the order to make it enforceable against the fund. Don’t rely on settlement wording alone—draft s 7(8)‑compliant orders.

6) Living annuities and accrual (what the SCA actually held)

CM v EM (SCA, 2020): The capital of a living annuity belongs to the insurer and isn’t a “pension interest”, but the right to future annuity payments may be a valuable asset in the annuitant’s estate for accrual purposes (valued actuarially). Draft with this distinction in mind.

7) Trusts & “alter‑ego” arguments (when trust value can count)

Courts won’t blithely sweep trust assets into a spouse’s estate. But if the trust is an alter ego (control without true separation of ownership; abuse to defeat matrimonial claims), the value may be taken into account for accrual/redistribution—fact‑heavy and not automatic (Badenhorst v Badenhorst; REM v VM; later SCA rounds refined the test). Your papers must prove control, conduct, and nexus.

8) Forfeiture & accrual: when a court can limit the benefit

Under Divorce Act s 9(1), a court can order forfeiture of patrimonial benefits (including an accrual share) to avoid undue benefit—considering duration, circumstances of breakdown, and any substantial misconduct. The classic framework is Wijker v Wijker. Don’t over‑plead fault; prove undue benefit on the statute’s factors.

9) Early division of accrual if you’re being prejudiced (s 8 MPA)

If your right to share in accrual will be seriously prejudiced by the other spouse’s conduct (dissipation, concealment), the court may order immediate division or replace the regime. Move quickly with focused evidence.

10) Evidence packs that win (and the mistakes that sink claims)

Win with:

• CPI‑anchored commencement values (ANC or notarial statement) + proofs;
• Full, frank disclosure (bank, investment, liabilities, tax) at both dates;
• Exclusion schedules that trace replacements of excluded assets;
• Actuarial notes where living annuities or complex pension interests are involved;
• Trust dossier (deeds, minutes, decisions, cash flows) if you advance alter‑ego arguments.

Common errors:

• Treating inheritances as included (they’re excluded unless expressly included);
• Ignoring CPI adjustments or nil rules for negative/no start values;
• Fudging pension interest (draft a proper s 7(8) order);
• Assuming trust assets are automatic (they’re not).

11) FAQs

12) Checklists

Accrual Calculation Pack (Applicant or Respondent):

• ANC + notarial commencement value statement (if any);
• CPI indices (Stats SA Gazette) for the relevant dates;
• Asset & liability lists at start and at divorce (with proofs);
• Exclusions schedule (inheritances, donations, non‑patrimonial damages + replacement tracing);
• Pension interest breakdown (fund statements; confirm Two‑Pot rule basis on date of order);
• Living annuities (policy schedules + actuarial valuation notes);
• Trusts (deed, resolutions, minutes, bank statements, loans, distributions).

Download the Accrual Calculation Checklist

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