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Introduction
A new era of divorce and family law is being entered into within the Republic of South Africa. In 2023, the Constitutional Court granted judgement in a landmark case that fundamentally altered the way in which our courts approach asset division in certain marriages. This altered approach allows for greater equitability and equality for spouses. In accordance with this, Parliament is preparing to pass the General (Family) Laws Amendment Bill, 2025, which shall grant full effect to these alterations.
These reforms have been established to correct an injustice that our current system held, where many spouses and particularly women who were married out of community of property without the accrual system (more popularly known as “out and out”) have been left financially vulnerable after the death or divorce of their spouse/partner, despite the many years of unpaid contributions made by them. This is included but not limited to running the household, raising the children, and/or supporting their spouse’s career.
The new legislation shall close this gap by empowering courts to redistribute assets more fairly. In practice, this means that contributions made within matrimonial homes shall finally be valued on the same footing as direct financial contributions.
What Is Changing in Divorce Law?
The General (Family) Laws Amendment Bill, 2025, shall include and allow for the introduction of many important reforms:
- The redistribution of Assets in Marriages
- Marriages entered into prior to 1984: These marriages were concluded prior to the introduction of the accrual system, at a time when South African courts had very limited discretion to redistribute assets upon divorce. The proposed Bill seeks to reform this position by extending greater protection and security to the surviving spouse, ensuring a fairer approach to the division of assets in such marriages.
- Marriages entered into after 1984 without the accrual system: Couples who elected to exclude the accrual system in their antenuptial contracts (ANCs) will now fall within the scope of the redistribution system. This means that, notwithstanding a provision in the ANC that each spouse shall retain separate ownership of their property, a court may, in the event of death or divorce, order a fair transfer of assets where one spouse has made a significantly greater contribution than the other spouse.
- Protection on death, not just divorce: For the first time, surviving spouses who have concluded an ANC without the accrual system may approach the court for a fair share of the estate upon the death of their spouse
- Greater role for Family Advocates: The General (Family) Laws Amendment Bill, 2025, also introduces an updated mediation process aimed at reducing the adversarial nature of divorce proceedings and encouraging settlement. This development is particularly significant where minor children are involved, as it prioritises cooperative solutions over conflict.
Why these Changes are seen as Necessary
The reforms that are taking place are rooted in the Constitutional Courts decision in EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others (10 October 2023). The court held that the Divorce Act 70 of 1979 had unfairly discriminated against spouses who were married out of community of property without the accrual system by:
- Excluding these spouses from asset redistribution due to their marriage being concluded post 1984.
- Denying the surviving spouses of these marriages any claim to the deceased spouse’s estate.
Furthermore, the court has recognised that domestic work and other non-income-generating contributions within the household are of equal value to direct financial contributions. Parliament was given a two-year period to address this imbalance, which has led to the introduction of the General (Family) Laws Amendment Bill, 2025.
Further Family Law Developments
These reforms form part of a broader effort to align all marriages with the constitutional values of equality and dignity.
Muslim Marriage (Divorce Amendment Act 1 of 2024): This Act allows for the recognition of Muslim marriages under South African civil law. Courts have the authority to dissolve these marriages, divide assets fairly, and grant orders pertaining to maintenance and contact.
Customary Marriages: As per the amendments made to the Recognition of Customary Marriage in 2021, women in customary marriages (monogamous or polygamous) shall have equal rights to family property.
Same-Sex marriages (Civil Unions Act 17 of 2006): Same-sex partners have enjoyed equal recognition as per the Act, which allows for identical rights in divorce as well as asset division.
What this Could Mean for You
If you are married out of community of property without the accrual system (“out and out”) or if you are considering this regime, these reforms directly impact you:
Divorce: You may hold the entitlement to a share of your spouse’s assets should you be able to prove that you have contributed, whether directly or indirectly to their estate.
Death of your Spouse: A surviving spouse may now claim a redistribution of assets from the deceased estate, where the court finds such a claim to be just and equitable.
Antenuptial Contracts: While your contract matters, it shall no longer be an absolute shield. Should the contract allow for an unfair outcome, courts now have the authority to override its strict terms.
Maintenance: The redistribution of assets may reduce the reliance on spousal maintenance from occurring either pending a divorce or after, thereby allowing the financially weaker spouse to be more independent.
Practical Scenarios
A spouse who gave up their career to stay home and raise the children, may now claim a portion of the family home and investments should a divorce occur.
A widow in a long-term marriage without the accrual system can claim ownership of the house she resides in, even if her late spouse’s Will excludes her from that.
A Muslim woman whose marriage was not recognised prior, can now seek asset division and maintenance in a civil divorce court.
Conclusion
It should always be emphasised that marriage is more than a legal contract. Marriage is a partnership that is built on a foundation of both non-financial and financial contributions. These upcoming reforms create a major change in how South African law shall recognise and safeguard these contributions.
The takeaway is that spouses are no longer invisible within the eyes of the law simply due to the marital property regime that was chosen.
At Van Deventer and Van Deventer Incorporated, we are committed to guiding clients through these changes, whether it is the drafting of the Antenuptial Contract (ANC), considering a divorce or assisting in a deceased estate. The law is evolving and we are always present and ready to ensure that you understand your rights and can protect your interests.