How to Mediate a Divorce for Couples Married Out of Community of Property with the Accrual System in South Africa

Divorce can be an emotionally and financially challenging process, but mediation offers a way for couples to dissolve their marriage amicably. For couples married out of community of property with the accrual system in South Africa, mediation plays a crucial role in ensuring that the division of assets is fair and in accordance with the law. Here’s how to effectively mediate such a divorce.

Understanding the Accrual System

Under South African law, when a couple is married out of community of property with the accrual system, each spouse retains ownership of the assets they had before marriage. However, during the marriage, any increase in the net value of each spouse’s estate is subject to division upon divorce. The spouse with the smaller accrual is entitled to half of the difference between their accrual and that of the spouse with the larger accrual.

Steps to Mediate a Divorce Under the Accrual System

1. Establish a Neutral Mediation Environment

The mediation process should take place in a neutral, non-confrontational setting. Both spouses should feel comfortable expressing their concerns and discussing financial matters openly.

2. Identify and Confirm the Marital Regime

The mediator must first confirm that the couple was married out of community of property with the accrual system. This can be verified by reviewing the antenuptial contract (ANC), which outlines the financial arrangements agreed upon before marriage.

3. Calculate the Accrual of Each Spouse

Each spouse must disclose their financial positions at the beginning and end of the marriage. The calculation involves:

• Determining the initial net worth of each spouse at the time of marriage.

• Assessing the net worth of each spouse at the time of divorce.

• Deducting the initial value from the final value to determine the accrual.

  
  

Any inheritances, donations, or specific exclusions mentioned in the ANC are not included in the accrual calculation.

4. Facilitate Discussion on Accrual Sharing

Once the accrual is calculated, the mediator should help both parties negotiate a fair settlement. The spouse with the smaller accrual is entitled to half of the difference in accrual values. Open and transparent communication is key to ensuring both parties understand their rights and obligations.

5. Address Additional Financial Considerations

Beyond the accrual calculation, the couple may need to discuss additional financial matters such as:

• Spousal maintenance (if applicable)

• Division of debts and liabilities

• Child maintenance and custody (if children are involved)

  
  

The mediator should ensure that all these issues are addressed comprehensively.

6. Draft a Settlement Agreement

Once the parties reach an agreement, the mediator or a legal professional can draft a formal settlement agreement. This document outlines how assets, debts, and responsibilities will be divided. The agreement should be legally sound and in compliance with the Divorce Act.

Conclusion

Mediating a divorce under the accrual system in South Africa requires a clear understanding of the law, financial calculations, and effective communication. A skilled mediator can help spouses navigate the process smoothly, ensuring a fair division of assets while minimising emotional and financial stress. By choosing mediation, couples can part ways with dignity and mutual respect, setting the foundation for a better post-divorce future.