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Referee for Accrual Calculation - when agreement can't be reached

The qualification of the accrual claim by a referee appointed in terms of section thirty eight of the Superior Courts Act 10 of 2013

The most recent case dealing with the aforementioned is that of T.N.(plaintiff) versus N.G. (formerly N ,now G,-first defendant), N.G.N.N.O. (second defendant), G.F.R.N.O.(third defendant), T.N.N.O. (fourth defendant) and the Master of the High Court (fifth defendant).This was a Western Cape Division matter before the Honourable Mr. Justice Binns-Ward, and the date of judgment was 12 March 2018.

Commencement value averred to be incorrect

The woman was seeking the divorce (plaintiff),and her husband was the first defendant.The parties were married with an antenuptial contract with the application of the accrual system, and the antenuptial contract reflected the net commencement value:

• of the husband to be three million rand, and that
• of the wife to be six hundred and fifty thousand rand.

The plaintiff in her pleadings averred that the net value of the first defendant’s assets in the antenuptial contract was incorrect ,and that his net commencement value was no more than seven hundred and fifty thousand rand.She asked for an order incorporating the terms of the antenuptial contract, but that the antenuptial contract be rectified to reflect the first defendant’s net commencement value to be seven hundred and fifty thousand rand,and not three million rand.

Maintenance & parenting plan

There was also a minor child involved in the matter and in the final order the court awarded amongst other things an amount of maintenance to be paid by the first defendant,and the court also made an order relating to rights of contact as per a parenting plan.

30 days to agree on accrual

As far as the accrual was concerned, the plaintiff’s claim for rectification of the antenuptial contract was dismissed. The court ordered that if the parties could not reach agreement within thirty days of the order being granted on the calculation of the accrual, then a referee shall be appointed in order to inquire into and report to the court on the valuation of the parties’ respective estates, and the computation of the accrual claim.

Nominate accountant as referee

The court further ordered that the parties and/or their legal representatives jointly address a letter to the South African Institute of Charted Accountants (“SAICA”},to nominate a chartered accountant with at least fifteen years experience to act as referee in terms of section thirty eight of the Superior Courts Act 10 of of 2013,to undertake the accrual calculation. The court furthermore made orders amongst other things relating to the powers and duties of the referee.

Remuneration of referee

As far as the remuneration of the referee is concerned, the court ordered that this shall be by agreement between the parties, failing which the referee would be entitled to a reasonable remuneration and reimbursement of the reasonable incurred expenditure, such remuneration to be subject to taxation by the taxing master. The taxation is provided for in section 38(6) of the Superior Courts Act.

The abovementioned case illustrates just how difficult the accrual calculation can prove to be in a divorce matter. The appointment of the referee was the most logical conclusion to resolve the accrual aspect of the abovementioned matter. The case also illustrates that it is not easy to have the terms of the antenuptial contract rectified. The antenuptial contract is seen to be a valid and enforceable agreement, unless otherwise agreed,and its terms and the calculations incorporated therein will only be varied in exceptional cases.

Ending an ANC with Accrual marriage

Free Antenuptial contract with accrual spreadsheet template for the division of the joint estate.

• Division of the joint estate for ANC with accrual divorce.
  • Who gets the business?
  • When parties cannot agree on the accrual calculation; the court may appointment a referee to assist with the accrual calculation
  • When parties cannot decide how to divvy the assets : The court may nominate someone to collect, realise and divide the estate (called a liquidator, receiver or curator).
• The duty to disclose your financials when divorcing:
  • Insufficent disclosure from a spouse on their assets/liabilities; the section 7 notice remedy (in terms of the Matrimonial Property Act) .
  • Divorce full disclosure clause
• Example of ANC with accrual marriage contract.
  • Key clauses in an antenuptial contract
• Property
  • Donation of property agreement not followed through.
  • When property is erroneously in your spouse's name.
  • Conveyancers conduct the transfer of property ownership from one spouse to another (or to a third party, if relevant).
• Divorce settlement clauses
  • Property sale clause in divorce settlement.
• Enforceability of antenuptial contract overseas
• Amending an antenuptial contract
• Terms of an amended ANC
• Limits on the power of the court to amend an ANC
• Postnuptial contract - for when you're already married and realise you should have entered into an antenuptial contract, or you want to amend an existing agreement.
• Marriage
• Antenuptial contract notarial requirement
  • Cost of an antenuptial contract
  • Drafting an ANC with accrual contract

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