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Saturday, November 27, 2021
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The Accrual System Protects Women

When the South African Law Commission reviewed the matrimonial property laws in 1982 (The old Act), the Commission was particularly concerned about the plight of women who had been unable to accumulate property/assets during the course of their marriages.


Historically, men earned much more than women. This is still true today: men are more likely

to find work and to find better paid jobs and are paid more than women even when women perform work at the same level.


According to a 2010 study comparing the salaries of male and female managers in the UK, the wage gap between men and women respectively are closing-but very, very slowly.  At the current rate of progress, women will have to wait until 2067 before they can earn on the same level as men. If all types of work are considered, women’s salaries are on average 15% lower than men’s.


In view of these economic realities it is unsurprising that many married couples choose to priorities the husband’s career over the wife’s. This is a rational and sensible financial decision to make. Where it is possible for the spouses to support the family on one salary, many couples choose to share family responsibilities in a way that allows one spouse to stay at home, manage the household and look after children, while the other spouse goes out into the workplace and earns an income.


There have been periods in human history where the goal of every middle class family was to have a stay-at-home wife and mother. This model of the family was endorsed and promoted by the law. Social pressures on women to stay at home with the children lessened somewhat towards the end of the 20th century.


Poorer women often have no choice about whether or not they will work outside the home. Financial realities oblige them to work to keep food on the table. Regardless of the matrimonial property system chosen by the couple, marriage is always a team effort and both spouses have a legal obligation to contribute to the success of the shared enterprise.


Their contributions might take different forms – and empirical surveys suggest that typically, husbands will take on the role of primary breadwinner, and wives the role of primary caregiver. One result of this role allocation for couples married out of community of property is that husbands usually have far better opportunities to increase the value of their estate than wives. If the marriage ends in a divorce, husbands are in a far stronger financial position than wives.


The economic and financial disadvantage experienced by primary caregivers is often referred to as the ‘motherhood penalty’. Empirical surveys show that motherhood obligations continue to undermine women’s earning potential in the 21st century. Regardless of which spouse derives disproportionate financial benefit from the shared enterprise of marriage, the Law Commission considered this outcome inequitable.


The aim of the accrual system in which the spouses share the financial gains made by the spouses during the marriage, was introduced in 1984 to ensure that that spouses benefit equally. The spouse whose estate increases or grows more must share some of this growth with the spouse whose estate grows less. Thus if one spouse chooses to stay at home and tend to the household while the other spouse goes out to earn a salary, the spouse who took on the stay-at-home role will not be at an economic disadvantage…

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