A newspaper article which I recently read dealt with the divorce case of a Russian Billionaire, Mr. Boris Berezovsky. Berezovsky was recently asked by his wife Galina for a divorce and instructed a leading London attorney to represent her. The abovementioned couple had been married for 18 years and it is estimated that Mrs. Berezovsky could walk away with up to R1, 27 billion of her husband’s estate, which some estimate to be at least one billion pounds. The couple separated about sixteen years ago and Mrs. Berezovsky lives in London with their two teenage children.
If this matter was heard in a South African court I am convinced that the Court would definitely take into account the years that the parties have been separated when working out division of the assets. Mr. Berezovsky’s argument would in all likelihood be that his wife made no contribution either directly or indirectly, to the equity which he built up during the period of separation, and therefore she should not be entitled to share in that, no matter what their matrimonial regime is.
What would strengthen Mrs. Berezovsky’s case however is that when the couple met in 1981 Mr. Berezovsky was a poor mathematician. During the course of their marriage Mr. Berezovsky started in business and made money importing and distributing motor vehicles. Mrs. Berezovsky would argue that were it not for her being there, her husband would not have achieved the financial success which he did after starting his business.
I recently had a case where my client received a pension fund payout five years after separating from his wife. He had in fact only started that new job after having separated from his wife. Our argument was that five years had lapsed since the separation of the parties and the date of summons in the divorce matter and that his wife made no contribution to the growth in his pension. The court found that his wife therefore had no legal claim to share in the growth of the pension during the five year period of separation.
What I find particularly interesting about the law is that a case can be argued in many different ways. It is not like other professions, like medicine, for example, where there is often one way only to heal a broken bone for example. In a divorce case there are very often two sides with two totally different arguments. Each party always feels that they should get a greater share of the assets than the other party. One thing which is certain though is you can never claim a share in the equity to which you have not contributed, whether directly or indirectly. If you haven’t lived together for a while this is definitely relevant when it comes to division of the assets.
When two parties are married with an antenuptial contract with accrual, the party whose estate has shown a greater accrual than the other party’s estate will stand more to lose financially than the other party at the time of dissolution of the marriage. Being married with accrual usually means that there is an equal division of the equity accumulated during the course of the marriage, unless any assets are specifically excluded from the antenuptial contract.
Often in a divorce matter both parties allege that the other party’s estate has shown a greater accrual than their own estate . When drafting court papers there is a certain way of drafting the accrual prayers. A common way of drafting the accrual prayers in the summons would read as follows :
“ i) An order enforcing the provisions of the antenuptial contract as concluded between Plaintiff and Defendant.
ii) Confirming that the Plaintiff’s estate shall upon dissolution of the marriage have a greater accrual than the Defendant’s estate.
iii) Confirming that the Defendant is entitled to a claim against the Plaintiff, which claim is equal to fifty percentum (50%) of the difference in the accrual between their respective estates.
v) Quantifying the Defendant’s claim to fifty percentum (50%) of
the difference between the accrual of the Plaintiff’s and
Defendant’s estates respectively.
iv) Directing the manner and form in which the payment of the Defendant’s claim, against the Plaintiff for fifty percentum (50%) of the difference between the accrual of the Plaintiff’s and Defendant’s estate must be made, be it by way of payment in cash or by division and transfer of assets between the Plaintiff and Defendant.”
As appears from the above one first has to ask for an order enforcing the provisions of the antenuptial contract as concluded between the parties. This normally is not a problem as the antenuptial contract is a valid binding contract if it is correctly drafted and stamped by a notary.
The question relating to whose estate has shown a greater accrual is sometimes a debatable one. One would have to look at all the assets and liabilities of each party in order to work this out. The problem arises where assets are hidden by one or both of the parties.
As appears from the clauses above, the attorney would then have to ask for an order confirming a fifty percent claim to the other party’s accrual. The attorney would then have to ask for an order quantifying the claim to fifty percent of the other party’s accrual. The attorney would also in the particulars of claim ask for an order directing the manner in and the form of payment. Payment is usually done by cash or by transfer of assets.
It is important for an attorney to draft the prayers relating to the accrual in a legally acceptable manner. It is common in the initial summons that the assets such as the houses and the motor vehicles are not individually mentioned. You would usually only in the initial summons make the averment that you are entitled to fifty percent of the accrual. Usually the attorneys would exchange the valuations of the assets to then work out the accrual.
This article was written by Cape Town lawyer, Peter M Baker
petermbaker@yahoo.com
Appointment of a referee for the accrual calculation
Section 7 notice in terms of the Matrimonial Property Act