South Africa’s divorce and property laws are set for a major overhaul to ensure fairer asset division. If you’re getting divorced, reviewing your antenuptial contract, or finalising a deceased spouse’s estate, the upcoming changes could significantly impact your financial rights.
In June, the Minister of Justice and Constitutional Development, Minister Mmamoloko Kubayi, announced that the General Laws (Family Matters) Amendment Bill will soon be tabled in Parliament. The Bill is expected to be introduced and processed within the year.
The reforms stem from a 2023 Constitutional Court ruling and aim to protect spouses – particularly those married out of community of property without accrual – who are often left with nothing after divorce or death, despite years of non-financial contributions to the marriage.
The Bill proposes amendments to the Divorce Act, the Matrimonial Property Act, and the Mediation in Certain Divorce Matters Act. It will give courts greater powers to redistribute assets fairly and will be particularly beneficial to spouses in pre-1984 marriages and those who excluded accrual in their antenuptial contracts.
What the proposed divorce law reforms will change
Bertus Preller, a family and divorce law attorney and mediator at Maurice Phillips Wisenberg, outlined the impact of the proposed amendments in a recent blog post.
He says the central change is that the courts will be empowered to redistribute assets in certain marriages out of community of property without accrual. Currently, this marital regime leaves some spouses with no legal claim to assets, despite their non-financial contributions to the marriage.
The Bill addresses two main scenarios:
- Pre-1984 marriages. These older marriages took place before the accrual system was introduced. The Bill confirms that the courts will be able to order asset transfers not only on divorce but also in the event of a spouse’s death.
- Post-1984 marriages excluding accrual. In cases where couples opted out of accrual through their antenuptial contracts, the courts will have the discretion to order asset redistribution if it is considered just and equitable.
Additional reforms include:
- Matrimonial Property Act updates. These will explicitly allow asset redistribution when such marriages end in death.
- Changes to the Mediation in Certain Divorce Matters Act. These will strengthen the role of the Office of the Family Advocate and promote the use of mediation in divorce proceedings.
Preller says the most significant change in the proposed legislation is that the courts will be given the power to redistribute assets between spouses married out of community of property without accrual. This applies even when couples have kept their finances entirely separate, often through an antenuptial contract. If such a marriage ends – whether by divorce or death – a judge may award a portion of one spouse’s assets to the other.
“This is being introduced to protect spouses who supported their partner or the family without owning assets of their own,” he explains. “The Constitutional Court ruled last year that it’s unfair and unconstitutional that these spouses (mostly women who were homemakers) walk away with nothing. So, the law is catching up to ensure fairness.”
Preller notes that the reform effectively closes a loophole in the Divorce Act that previously failed to recognise non-financial contributions to a marriage. He adds that the proposed changes go beyond asset redistribution, because they also include provisions to recognise all types of marriages – including religious and customary unions – and to strengthen the role of family advocates and mediation in divorce proceedings.
“It is a comprehensive overhaul to modernise family law in line with recent court decisions and social realities,” he says.
How the new asset redistribution powers will work
The proposed changes will give courts the power to transfer assets from one spouse to another at the time of divorce, provided the judge believes it is just and equitable.
Preller explains that the classic example involves a couple married out of community of property without the accrual system. One spouse may have built up a business and accumulated property in their name, while the other gave up a career to raise children or supported the business informally.
“Under the old rules, the non-owning spouse had no claim to those assets – they would be left high and dry, apart from possibly asking for maintenance,” he says.
With the reform, that spouse can ask the court for a share of the assets. Preller says the court will consider a wide range of contributions – not only financial ones, but also those such as raising a family or managing a household. If the court is convinced that the non-earning spouse enabled the other to prosper, it can order a redistribution.
“The court can say: ‘Alright, transfer (say) 30% of your estate or this particular property to your wife/husband.’”
He emphasises this is not a blanket 50/50 division – it’s about what is fair in each individual case.
Preller adds that the changes will also apply in the case of death. If a spouse dies in one of these separate estates marriages, the surviving partner can apply for a share of the deceased estate.
How do the changes affect antenuptial contracts?
According to Preller, couples will still be able to sign antenuptial contracts and choose to exclude community of property or the accrual system.
“That doesn’t change – we’re not forcing everyone into sharing regimes. However, what does change is that an antenuptial contract will no longer be absolute in its effect upon divorce,” he said.
He explains that if enforcing such a contract would lead to a seriously unfair outcome for one spouse, the court will have the power to step in and partially override it. The goal is not to discard contracts but to prevent unjust outcomes.
“Think of it like this: you have a contract, but there’s now a statutory clause of fairness built into every contract by law. For example, a couple might have agreed to complete separation of property – and that’s fine during the marriage – but at divorce, if one party is going to walk away a lot richer and the other much poorer (despite both contributing in different ways), the court can redistribute some assets so that the outcome isn’t unconscionable.”
Preller says that in practice, many couples might not be affected – if both parties worked and maintained separate finances, the divorce outcome would likely remain equitable. The new provision is aimed at extreme cases of financial imbalance, particularly where one spouse has supported the other or the household without acquiring assets themselves.
For legal practitioners, the reform means that lawyers drafting antenuptial contracts will likely advise clients that opting out of accrual does not guarantee complete asset separation at divorce.
“So, couples should only exclude accrual for good reason, and possibly even build into their contract how they would want contributions handled, to have some certainty. But yes, bottom line: a court can override the strict terms of an antenuptial contract when fairness dictates, under these new rules,” Preller says.
Divorces for Muslim and customary marriages
Historically, Muslim marriages were not recognised under South African civil law. However, an amendment to the Divorce Act in May 2024 fully recognised Muslim marriages for the first time.
Preller explains this means couples married according to Islamic rites can now obtain a divorce decree through the courts just like any other married couple. The courts will ensure that children from such marriages are protected and can order maintenance and a fair division of assets. The law explicitly allows courts to redistribute assets in a Muslim marriage divorce and to apply forfeiture principles for misconduct.
He says, “So, a Muslim wife, for example, who used to have no claim, can now get an equitable share of the marital assets and maintenance for herself and the children. That’s a major change – it effectively ended decades of non-recognition.”
Regarding customary marriages under African customary law, Preller notes that these have been legally recognised since the Recognition of Customary Marriages Act of 1998. He acknowledges that early legislation had some unequal aspects, particularly affecting women in polygamous marriages, but says these issues have since been addressed through amendments.
“Now, all customary marriages are by default in community of property, meaning wives have equal rights in the property acquired. If a customary marriage ends, the divorce court will divide the assets equally or equitably, and women are not left out in the cold like in the old days,” he says.
On same-sex marriages, South Africa has recognised these since 2006 under the Civil Union Act. Preller confirms that same-sex couples have the same divorce rights as heterosexual couples.
He sums up: “So, today, whether your marriage is civil, customary, Muslim, Hindu, same-sex – the law treats them all as valid and our divorce courts will handle them on an equal footing. The common theme with all these changes is bringing everyone under the umbrella of protection, so that no matter how you were married, you have recourse to a fair divorce process.”
Thanks for the updste
Interesting
This will be a great development in our country. I just hope our courts would really interprete what is just and equitable given our societal forms and behaviours. And the mediation should really play it’s part.
I welcome the Constitutional Court’s decision and the direction it signals, but it’s important to remember, many women who need this protection the most remain unaware of their rights.
Far too many marginalised women are trapped in marriages where they lack both legal knowledge and the financial means to institute divorce proceedings. They end up settling for the bare minimum — or walking away with nothing — not because they didn’t contribute, but because they’re unaware that they can approach the courts for justice. Estranged husbands often take advantage of this silence and lack of access.
As this amendment moves forward, I would like to see a clear clause added that deals with asset dissipation during the divorce process. Where one spouse deliberately hides or disposes of assets — or creates artificial debt to manipulate the accrual system — they must be held legally accountable. This should include:
• The return or repayment of any assets moved or sold off during the divorce process.
• Full financial disclosure and consequences for failure to do so.
• Protection against financial abuse disguised as poverty.
We need a system that protects not just those who can afford lawyers, but those women who built homes, raised families, supported careers — and are now left with nothing.
Let’s ensure this amendment goes beyond the symbolic and becomes a real tool for justice.
Amen. As a 53 year old trying to rise after PTSD therapy post divorce. I’m crying happy tears for the future of marriage. Finally some justice and fair representation. 🙏🏻😢. 3 years later and still dying a slow financial death. From my own business that’s still a great success to unemployed with my adult son and two dogs. My pension is nothing I planned or worked so hard for. Finally marriages may be for real again and not for benefits. 16 years marriage to highly successful human left me bankrupt. Full control 😢
Thank you for the comprehensive update. Certainly imporant to consider in any divorce proceedings.
I hope the courts do not cause chaos and catastrophic phenomenon in this country.Assets acquired before marriage and many more would have to be ostensibly defined and sidelined before stepping into acquired assets during the marriage.They should act cautiously and circumspectly in such matters,otherwise,they would create more trouble and fan the already existing flames
Indeed, some spouses play a significant role in the non-financial well-being of the household in various ways.
It is important to recognize and consider this legally, especially when the brown thingy hits the fan.
This is unfair if courts can have the right to discuss lawful marriage contracts. When entering a contract it’s your choice unless if it’s materially defective!
I forsee problems now. Killings and GBV will escalate. Cheating is the major problem in our country. Female or male is the same. One partner will cheat and you divorce him/ her and she/he gets his/ her share. Marry another one and cheat and get share. Marriage is business these days.
So to be fare… the court can now judge the partner to be accountable for debt too… there is a reason for certain laws and methods.
In case of civil if spouse leave you for more than 20 years and you work out for everything alone then you decide to divorce, is he or she is liable to 50% of what you have worked for? What can I do in order to stop that.
So the contract is now null and void???
This is unfair because, if she or he came in the marriage just for money doesn’t that give them ammunition, to marry for a year then just divorce and have a stake in what I worked for before marriage???
Regardless of how courts attempt to justify this matter by saying they are redistributing assets to balance the equation between marriage partners after marriage.
I do not think this should be incorporated into our law and court and legal minds who are proposing this are not fair or just by any means.
The proposal made is not aware of the changes within our current society.
Marriage of late is a business for many. The is a tendency for people to get into the institution with a preconceived idea to loot all assets or estate of another individual, how do they protect those individuals with these proposed laws?
When people are entering a marriage and choose a certain marital regime, that is a freedom of contract like any normal contract which is entered into by a parties, are courts now taking proposing to take away freedom of contract from people ?
The parties entering marriage having signed antenuptial contract and choosing to marry subject to out of community of property without accrual are doing so with awareness and conscious of the future consequences in case the marriage dissolves, why are the court now trying to decide for them ?
What happens if one parties estate was targeted as it is in this day and age. How will they protect them. It is more beneficial to woman as well as the “most vulnerable party”. Nevertheless do they take into consideration that woman are mostly the ones that in this day and age target some man to use marriage as a means to enrich themselves and with this proposal that procedure will be facilitated easily and work in favour of those who are merchandisers of such shenanigans.
In a society where divorce has high statistics our government or legal authorities are proposing such amendments.
This amendments are somehow forcing people to marry in community of property or out of community of property without accrual because the out of community without accrual is being dismantled and indirectly ineffective with such amendments.
Marriage is risk already within a society which is burden with unemployment and poverty stricken country like ours. Many will not engage in marriage if such a proposals are incorporated into our legal system but even disregard it because it is risky and does not give them an option to protect themselves against man or woman who attempt to use marriage as a means to an end (which seems to be a neglected aspects by the courts).
Such attempts will make many to end up in relationships that don’t lead to family structures based on marital covenant because of the fear of assets and their estate being easily given away.
These attempts will destroy family structures or make people fear engaging long term relationships, it will drive many into noodles relationships since they won’t be risky and costly nor be a threat to anyone’s estate which has been built over time.
We will be left with a society that engages in casual relationships, increasing infertility, Sexual transmitted diseases, broken families and no commitment because freedom of contract was not recognized
Do you know who will benefit the sexually transmitted diseases increasing based on this casual relationships yes you have got it right.
I hear the point of protecting a spouse who might have significantly contributed non financially. I am of the view that they definitely need to be protected as well. Nevertheless should we not be calculative of the fact that they signed an antenuptial contract aware of the consequences should the marriage break down.
This will make people to try to eliminate threat in the process or escape the outcomes by any means necessary.
Since we are protecting the spouse that is not benefitting from the estate after non financial contribution which I don’t necessarily see a bad proposal but these are choice one makes to contribute to an estate of another aware of the consequences that might take place if they divorce.
How do we protect the spouses who are intentionally targeted as a money making scheme since antenuptial might no longer be fully effective ?? These are also societal realities which court must take into consideration as well in these day and age.
How do we measure non financial contribution and to what extent.
There’s nanny’s, cleaners, chefs of cookers and gardeners, business partners. If that is the case will the woman or man not get anything because they did not necessarily contribute much to the estate since this man and woman helped him rather than the spouse…
Does this not then create a category of a people to whom the proposed Amendment will apply towards and constitute indirect discrimination in it’s administration .
You are 100% correct, Lucky; we live in a sick society where marriages are commodified, and some families are involved in a serious property heist against unsuspecting and well-intended men in most of the cases. These days, marriages function as businesses that primarily benefit women and the government. On the other hand, the government introduces legislation that contributes to dysfunctional marriages, which often end in divorce. When this happens, a party with ill intentions, together with the government, benefits from the unfair disposal of assets from a failed marriage, and the government charges capital gains tax on the assets sold as a result of divorce. The government must stop interfering in people’s lives and let parties choose their marriages and what to share or not to share.
I also believe it’s unfair that the court can over right ANC’s, there is a reason why we protect certain assets and exclude them. And the court promote more divorce motivates.Why can’t the court and law protect the us from cheaters and spouses that wants get divorce for assets and money.
I forsee problems and money grabbers. Maybe more murders. People will marry then they just divorce for the money.
Maybe less people will marry now.
While the proposed Bill aims to ensure fairer asset division in divorce cases, I have reservations about its potential consequences.
Erosion of Contractual Agreements
If courts can override antenuptial contracts, it raises questions about the necessity of these contracts in the first place. This undermines the principle of contractual agreements and the autonomy of individuals to make informed decisions about their financial arrangements.
Potential for Unfair Exploitation
Knowing that courts can intervene and redistribute assets, one party may be incentivized to accumulate debt or squander joint assets, leaving the other party vulnerable. This could lead to unfair exploitation and create more problems than it solves.
Impact on Financial Responsibility
The Bill’s provisions may inadvertently discourage financial responsibility and planning within marriages. If individuals know that courts can override their contractual agreements, they may be less inclined to manage their finances prudently, relying instead on the court’s intervention.
These concerns highlight the need for careful consideration and nuanced discussion around the General Laws (Family Matters) Amendment Bill to ensure that its provisions do not create unintended consequences.
The same should apply to couples who are cohabiting, as not everyone has easy/financial access to lawyers to draw up a universal (cohabitation) agreement.