The accrual system provides a mechanism for sharing the financial growth of a marriage. However, disputes often arise regarding which assets should be excluded from the calculation. Case law provides crucial guidance on disclosure, tracing assets, and the limits of exclusion clauses.
The Burden of Proof: ST v CT
When a marriage dissolves, spouses must declare their assets. If one spouse claims that a specific asset (or the money used to buy it) was explicitly excluded in the Antenuptial Contract (ANC), who must prove it?
In ST v CT [2018] ZASCA 73, the Supreme Court of Appeal confirmed that the burden of proof rests firmly on the spouse claiming the exclusion[cite: 6]. That spouse must demonstrate not only that the original asset was excluded, but also trace the financial nexus (the paper trail) if that asset was sold and converted into new assets[cite: 6]. If the spouse fails to make full and frank disclosure under Section 7 of the Matrimonial Property Act, the court may draw adverse inferences against them[cite: 6].
Living Annuities are Not Capital Assets
ST v CT also clarified the treatment of living annuities (like a Sanlam Glacier annuity). The Court ruled that the underlying capital of a living annuity belongs to the insurer, not the spouse[cite: 6]. Therefore, the capital value is not included in the spouse's estate for the accrual calculation[cite: 6]. (However, the monthly income received is relevant for maintenance claims[cite: 6]).
Can You Exclude Future Assets? FB v RF
Couples sometimes try to draft ANCs that exclude assets they don't even own yet. In FB v RF [2017], the High Court assessed an ANC clause attempting to exclude shares acquired after the marriage[cite: 1].
The Court held that under Section 4(1)(b)(ii) of the Matrimonial Property Act, spouses can only exclude assets they possess at the commencement of the marriage, and the direct proceeds/fruits of those specific assets[cite: 1]. It is fundamentally incompatible with the accrual regime to categorically exclude random assets acquired in the future[cite: 1].
⚖️ The Legal Takeaways
- He who claims an exclusion must prove it, including the tracing of funds[cite: 6].
- You cannot proactively exclude random future assets under the statutory accrual framework[cite: 1].
What This Means for Couples
- Keep meticulous records: If you exclude an asset, you must be able to trace its proceeds if you sell it.
- Be transparent: Have you disclosed relevant assets to your Notary?
- Understand exclusions: Are you relying on a clause without understanding the statutory framework governing future assets?
⚠️ What These Cases Do Not Mean
These cases do not mean that exclusions are useless. Lawfully excluded pre-marital assets (and their direct proceeds) remain protected[cite: 1, 6]. They simply mean you cannot hide behind poor record-keeping or draft overly broad clauses that try to defeat the purpose of the accrual system[cite: 1, 6].