Grant Smee | Property Entrepreneur | Managing Director | Only Realty Property Group | mail me |
South Africa’s family law is set for a significant shift. The proposed amendments could impact how property and other assets are divided in the event of divorce or death, even when there is an antenuptial agreement in place.
This is one of the most substantial adjustments seen in matrimonial property law in some time. The goal is to promote fairer outcomes, particularly for spouses who have made meaningful non-financial contributions to the marriage.
Statistics South Africa shows that 130,806 civil marriages were registered in 2023. While the number is in decline, Smee explains that marriage remains a commonplace institution in South Africa. It still carries significant legal implications for property ownership.
Unpacking proposed legal reforms
Justice Minister Mmamoloko Kubayi plans to table the General Laws (Family Matters) Amendment Bill in Parliament this year. This Bill follows the 2023 Constitutional Court ruling that called for greater equity in divorce and estate matters.
The amendment aims to protect spouses who could be left financially vulnerable after death or divorce. To achieve this, it grants courts broader discretion in terms of fair asset redistribution.
The proposed amendments will affect the Divorce Act, the Matrimonial Property Act and the Mediation in Certain Divorce Matters Act.
The most notable proposed reforms include:
- Pre-1984 marriages (before the accrual system) – courts may now redistribute assets upon death or divorce.
- Post-1984 marriages without accrual – even with an antenuptial contract excluding accrual, courts may intervene to redistribute assets if they consider it just.
This departs from the current norm. At present, a spouse typically walks away only with what is legally theirs, regardless of their broader contributions to the marriage. Couples who are married or planning to marry should take note of how these legal updates could affect property ownership and estate planning. These divorce law changes will also influence how courts interpret fairness in property division.
What the bill means for property owners
Under this amendment, courts will consider non-financial contributions such as homemaking, raising children or supporting a spouse’s career or business when dividing assets.
Importantly, this is not about defaulting to a 50/50 split. Instead, it is about assessing whether one spouse enabled the other to grow wealth or acquire property before deciding what a fair outcome looks like.
The reforms mean that spouses in no-accrual marriages will be able to apply to the divorce court for a redistribution of assets. The court can then decide to transfer a portion of the spouse’s assets to the applicant. This will happen if the court finds that he or she contributed to the increase of the spouse’s estate, either directly or indirectly.
Factors that will determine asset distribution include the duration of the marriage, the couple’s arrangements and the extent of the applicant’s contribution.
Based on this, assets that may be subject to redistribution include:
- Primary or investment properties.
- Real estate-linked business interests.
- Property within a deceased spouse’s estate.
Under the current law, surviving spouses in non-accrual marriages often have no claim to property unless specified in a will. The proposed changes would allow for court-ordered redistribution from the deceased’s estate. This would offer greater financial protection for the surviving spouse.
The reform aims to prevent situations where an individual is left with nothing when a spouse dies, despite years of matrimonial support. These divorce law changes therefore close some of the gaps that have historically left spouses vulnerable.
Practical tips for married and engaged couples
For married or engaged couples, especially those with shared property or long-term investments, legal advice is recommended regarding the upcoming adjustments to marital law.
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Review or update your antenuptial contract
Antenuptial contracts remain valid, but courts may override them if they result in an unfair outcome. We strongly suggest drafting contracts with contingency clauses to account for future contributions and asset division scenarios. It is strongly advised that you work with a legal team to make these adjustments.
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Explore postnuptial adjustments
Married couples can apply for a change in their matrimonial property regime under Section 21 of the Matrimonial Property Act. This helps align existing agreements to the new legal framework, particularly in cases involving property investments.
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Consider detailed contract planning
If you are entering a marriage with significant property assets, more consideration will be needed to ensure an equitable distribution. Couples should:
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Clearly define asset exclusions.
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Assess whether the chosen regime still suits their needs.
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Ensure estate plans and wills reflect the potential for court-ordered redistribution.
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Account for dependents to avoid unintended asset shifts.
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I believe these changes reflect a more modern understanding of marriage dynamics. It is important to remember that contributions are not always financial. The law now recognises that sacrifices made for the household, including non-financial sacrifices, deserve recognition.
These reforms aim to create a more balanced approach to property and asset distribution. For couples, acknowledging the impact of divorce law changes is key to preparing for the future.
