Introduction
South Africa is on the verge of a major transformation in divorce law that will fundamentally change how assets are divided when marriages end. Justice Minister Mmamoloko Kubayi has announced that the General Laws (Family Matters) Amendment Bill 2025 will be introduced to the National Assembly “shortly,” implementing sweeping changes mandated by a landmark 2023 Constitutional Court ruling.
These reforms specifically target a critical gap in current legislation that has left countless spouses – particularly those married out of community of property without accrual – financially vulnerable when their marriages end through divorce or death. Under existing law, these spouses often walk away with nothing, despite years of non-financial contributions to their families and partners’ success.
The comprehensive bill will amend three key pieces of legislation: the Divorce Act of 1979, the Matrimonial Property Act of 1984, and the Mediation in Certain Divorce Matters Act of 1987. Most significantly, courts will gain new powers to redistribute assets fairly, ensuring that spouses who contributed to building wealth – whether through homemaking, childcare, or supporting a partner’s career – can claim their rightful share.
This represents more than a technical legal update; it’s a recognition that marriage is an economic partnership where contributions come in many forms. The changes will particularly benefit those in older marriages (pre-1984) and couples who specifically excluded the accrual system in their antenuptial contracts, while also strengthening the role of Family Advocates in divorce mediation.
For thousands of South African families, these reforms promise to end an era where divorce could mean financial devastation for the economically weaker spouse, replacing it with a system that truly delivers justice and equality.
Proposed Changes to South Africa’s Divorce Laws (2025)
Overview of the General Laws (Family Matters) Amendment Bill, 2025
Justice Minister Mmamoloko Kubayi is set to table the General Laws (Family Matters) Amendment Bill, 2025 in Parliament, introducing significant updates to South Africa’s divorce laws. These changes respond to a 2023 Constitutional Court ruling and aim to better protect spouses who are left financially vulnerable under the current law. The core reform is to empower courts to redistribute assets in certain marriages that are out of community of property without accrual, ensuring a “fair share” for spouses who previously had no claim despite contributing to the marriage. This reform particularly targets two scenarios:
Older marriages (before 1 November 1984): Couples married out of community of property at a time when the accrual system did not yet exist. The Bill affirms that courts can order a transfer of assets in divorces of these marriages, which had been allowed under the Divorce Act’s redistribution mechanism for pre-1984 marriages. It closes gaps to ensure even if such a marriage ends by death (not just divorce), the surviving spouse can seek a just share of the estate.
Marriages after 1984 with no accrual by contract: Couples who married out of community of property and explicitly excluded accrual in their antenuptial contract (an option available since the Matrimonial Property Act of 1984) will now fall under the court’s redistribution power. Under current law, these spouses have no automatic claim against each other’s estate upon divorce or death, regardless of contributions. The Bill proposes that judges may order a transfer of assets if it is just and equitable, effectively overriding the strict separation in such cases to prevent unfair outcomes.
Additionally, the Bill amends related family laws to modernise divorce proceedings. Proposed amendments to the Matrimonial Property Act, 1984 will explicitly allow redistribution of property when a marriage out of community of property without accrual is dissolved by death, aligning with the Constitutional Court’s interim remedy that read such a provision into the law. Changes to the Mediation in Certain Divorce Matters Act, 1987 will formalise the functions of the Office of the Family Advocate and promote mediation processes in divorce disputes. In summary, if passed, the Bill will update the Divorce Act 70 of 1979, the Matrimonial Property Act 88 of 1984, and the Mediation in Certain Divorce Matters Act 1987 to ensure fairer asset division and spousal protection in line with contemporary values.
Legislative Background
2023 Constitutional Court Ruling – Closing the Gaps in Asset Redistribution
The impetus for the 2025 Bill is a landmark Constitutional Court judgment delivered on 10 October 2023 (EB v ER and Another; KG v Minister of Home Affairs). In this unanimous ruling, the Court found that Section 7(3) of the Divorce Act, which provides for redistribution orders on divorce, was unconstitutional in two respects:
It excluded spouses married out of community of property without accrual after 1 November 1984 from seeking a redistribution order on divorce. Originally, Section 7(3) only allowed redistribution if the marriage was entered into before the Matrimonial Property Act’s commencement in 1984, leaving those who opted out of accrual in later years with no such remedy.
It provided no redistribution remedy when a marriage out of community of property (without accrual) was terminated by the death of a spouse. In other words, a surviving spouse from a no-accrual marriage could not claim any portion of the deceased’s estate, even if she or he had contributed to its growth.
The Court ruled that these omissions unfairly discriminated against spouses (often women) in non-accrual marriages, violating equality rights. Many such spouses – e.g. stay-at-home mothers who raised children and maintained the home – found themselves financially destitute after divorce or widowhood, despite their non-financial contributions. The Court noted that their unpaid labour and support were as valuable as direct financial contributions and should be considered on dissolution of the marriage.
To provide immediate relief, the Constitutional Court suspended its declaration of invalidity for 24 months to allow Parliament to amend the law but also read in interim provisions. Notably, it directed that Section 7(3)(a) of the Divorce Act be read as if the words “before the commencement of the Matrimonial Property Act, 1984” were omitted, thus temporarily extending the redistribution mechanism to all out-of-community marriages with antenuptial contracts excluding accrual. It also directed that a new section (36A) be read into the Matrimonial Property Act to permit asset transfers on death, pending legislative reform. The General Laws (Family Matters) Amendment Bill, 2025 is Parliament’s answer to this judgment – it will codify these changes in law, ensuring that regardless of when the marriage was concluded or how it ends (divorce or death), a spouse who contributed to the other’s estate can seek a just and equitable share.
Divorce Amendment Act, 2024 – Recognising Muslim Marriages
Another recent reform in the family law landscape is the Divorce Amendment Act 1 of 2024, which came into effect in May 2024. This Act was a response to the Constitutional Court’s 2018/2022 decision in Women’s Legal Centre Trust v President of RSA, which held that the failure to recognise and regulate Muslim marriages was unconstitutional. Previously, couples married solely according to Islamic law (Nikah) had no protection under South African civil marriage statutes – their unions were not recognised under the Marriage Act 1961 or Divorce Act 1979. This left Muslim women in particular unable to claim maintenance, marital property, or even secure custody rights upon divorce or death of a spouse. They could only access these rights if they had also registered a civil marriage in addition to the religious marriage.
The 2024 Amendment Act rectified this by including Muslim marriages within the scope of the Divorce Act. It introduced a definition of a “Muslim marriage” as “a marriage entered into or concluded in accordance with the tenets of Islam” and explicitly stated that a court may issue a decree of divorce dissolving a Muslim marriage just like any other marriage. Crucially, the law now provides for the same protections and relief in Muslim divorces as in civil marriages:
Welfare of Children: Courts must ensure that minor or dependent children of a Muslim marriage are provided for, and can make orders on guardianship, care, and contact, just as with children from civil marriages.
Maintenance and Custody Orders: Judges can make maintenance, custody, and access orders in respect of children of a Muslim marriage, ensuring the best interests of the child are paramount (aligned with Section 28 of the Constitution).
Asset Redistribution: Perhaps most significantly, courts now have the power to order a redistribution of assets upon dissolution of a Muslim marriage, taking into account the parties’ direct or indirect contributions to the estate during the marriage. In the absence of an agreement between the spouses, a judge can transfer assets from one party to the other to achieve a fair division, similar to the Section 7(3) mechanism. This addresses the historic “legal vacuum” where Muslim wives left a marriage had no claim to the marital estate and often emerged with nothing.
Forfeiture of Benefits: The Act also extended the Divorce Act’s forfeiture provisions to Muslim marriages. Courts can order forfeiture of patrimonial benefits (such as denying an errant spouse the benefits of the marriage contract) if justified – considering factors like the duration of the marriage and the conduct of the parties. This ensures that a spouse who caused the breakdown of the marriage cannot unduly profit from it, mirroring Section 9 of the Divorce Act.
The Divorce Amendment Act, 2024 applies retrospectively to existing and even some past marriages: it covers all Muslim marriages in existence as of 15 December 2014 and those dissolved after that date where proceedings were not yet finalised. By finally recognising Muslim marriages in law, this reform safeguards the rights and dignity of Muslim women and children. It was hailed as “history made” when the first civil divorce decrees for Muslim marriages were issued in 2024 under the new law. Importantly, the Constitutional Court’s October 2023 judgment on accrual (discussed above) dovetails with this, since Muslim marriages are often out of community of property without accrual by default (the new law specifies that the default marital regime for Muslim marriages is out of community without accrual). Now, with both reforms, a spouse in a Muslim marriage that is out of community without accrual can apply for a redistribution order on divorce or upon widowhood, just as any other spouse would. This comprehensive inclusion ensures Muslim spouses enjoy equal protection under divorce laws.
Previous Reforms for Customary and Same-Sex Marriages
South Africa’s family law has progressively evolved to recognise diverse marriage forms and ensure equality:
Customary Marriages: The Recognition of Customary Marriages Act, 1998 (RCMA) was a major milestone, granting full legal recognition to marriages conducted under African customary law. Initially, the RCMA distinguished between monogamous and polygynous customary marriages in terms of property rights. All customary marriages are now deemed to be in community of property by default, unless spouses opt out by agreement. This change was cemented by the Recognition of Customary Marriages Amendment Act, 2021, which addressed historical gender inequalities. Under the amended law, wives in polygamous customary marriages have equal ownership and control over marital property alongside their husband. In practical terms, this means a woman in a customary marriage (including one with multiple wives) has the same entitlement to family assets and can claim an equitable share on divorce or death of her spouse – a protection that was previously denied to many. These reforms followed Constitutional Court decisions (e.g. Gumede v President of RSA (2008) and Ramuhovhi v President of RSA (2017)) that struck down discriminatory provisions and ensured that customary law marriages are brought in line with the constitutional rights to equality and dignity. Today, a customary marriage enjoys the same status and divorce process under the Divorce Act as any civil marriage, with courts empowered to divide property fairly and consider spousal maintenance and child welfare in such divorces.
Same-Sex Marriages: Since the end of 2006, South Africa has allowed same-sex couples to marry or enter into civil partnerships, with full legal parity to heterosexual marriages. This was achieved through the Civil Union Act, 2006 (Act 17 of 2006), enacted in response to the Constitutional Court’s ruling in Minister of Home Affairs v Fourie (2005) that denying marriage to same-sex couples was unconstitutional. The Civil Union Act permits any two people, regardless of gender, to register their union either as a marriage or as a civil partnership, and it explicitly states that all the legal consequences of a civil union are the same as those of a marriage under the Marriage Act. In practice, this means that same-sex spouses have identical rights in divorce: the Divorce Act 70 of 1979 applies to the dissolution of civil unions just as it does to civil marriages. Any reference to “marriage” or “spouse” in law is deemed to include those in civil unions. Thus, property division, maintenance, and child custody arrangements for divorcing same-sex couples follow the same principles of fairness and equality. This reform placed South Africa at the forefront of marriage equality globally and ensured that by the time of the current debates, family law treats same-sex and opposite-sex spouses alike.
It is worth noting that the upcoming General Laws (Family Matters) Amendment Bill, 2025 builds upon this history of reform. It extends the principle of equity and protection to yet another group – spouses in out-of-community marriages without accrual – who until now did not enjoy the same safeguards. In doing so, it harmonises the law with the constitutional values of equality and substantive justice across all types of marriages (civil, customary, religious, and civil unions).
Legal Implications for Clients
The proposed reforms have significant practical implications for family law clients. Lawyers will need to advise clients – both those contemplating marriage and those facing divorce – on how these changes affect their rights and obligations.
Spouses Married Out of Community of Property without Accrual
Clients who are married out of community of property without accrual are the primary beneficiaries of the new amendments. Under the current law, if such a marriage ends, each spouse retains only their separate property, with no claim on the other’s assets (apart from potential maintenance). This has often led to inequitable outcomes, especially for a spouse who sacrificed career opportunities or contributed in non-financial ways (like running the household or assisting in a family business). The reforms will change this landscape in the following ways:
Redistribution Orders on Divorce: Spouses in no-accrual marriages will be able to apply to the divorce court for a redistribution of assets, even if their marriage was concluded after 1984 and they had an antenuptial contract excluding accrual. The court will have discretion to transfer a portion of one spouse’s assets to the other if it finds that the applicant contributed directly or indirectly to the maintenance or increase of the other spouse’s estate and that it would be just and equitable to make a transfer. Indirect contributions include raising children, managing the household, or other services that enabled the other spouse to build their career or wealth. This means a stay-at-home spouse, or a lower-earning partner can claim a fair share of the accumulated wealth at divorce, rather than walking away with nothing. Each case will be fact-specific: courts will consider factors like the duration of the marriage, the couple’s arrangements, and the extent of the contribution when deciding on a redistribution order.
Claims upon Death of a Spouse: Importantly, the amendments extend protection to situations where a marriage ends by death and no accrual system applied. Currently, if a spouse dies in an out-of-community/no-accrual marriage, the survivor has no automatic share in the deceased’s estate (aside from whatever may be left in a will, or a maintenance claim under the Maintenance of Surviving Spouses Act). The new law will allow the surviving spouse (or the executor of the deceased estate) to approach a court for a redistribution order against the estate of the deceased. In effect, the court can order that a portion of the deceased’s assets be transferred to the survivor, just as it could have on divorce. This is a profound shift: surviving spouses who may have been financially dependent on their late partner won’t be left destitute or solely reliant on a maintenance claim – they can seek ownership of property/assets to support themselves. Clients should be made aware that this closes a loophole where, for example, a husband’s death could previously leave a wife of many years with no part of the estate she helped build. Now, she has a legal avenue to claim her share, subject to court approval.
Overall, the playing field is being levelled for spouses in separate property marriages. In practice, divorce settlement negotiations in such cases will likely involve discussion of a redistributive award. Lawyers should prepare to lead evidence of a client’s contributions (financial and non-financial) to justify the percentage of assets to be transferred. Conversely, a higher-asset spouse should be advised about this potential claim and may want to reach a fair settlement rather than face an uncertain court order. The spectre of a redistribution order also creates an incentive for more equitable division in mediation or settlement talks from the start.
Antenuptial Contracts and Accrual Considerations
The reforms raise critical points regarding antenuptial contracts (ANCs) and the accrual system:
Impact on Existing Antenuptial Contracts: Many couples who married after 1984 chose to exclude the accrual system in their ANC, often to keep assets strictly separate. Until now, such contracts guaranteed that, on divorce, each party leaves with their own estate only. The new law will not invalidate antenuptial contracts, but it overlays a statutory power for courts to intervene notwithstanding what the contract states. In other words, even if spouses agreed to complete separation of property, a court can still order a redistribution if one spouse would otherwise face serious inequity. This is a notable shift from the absolutism of contractual freedom in matrimonial property – effectively, the court’s equitable jurisdiction will trump the ANC in cases of need. Clients with existing ANCs excluding accrual should be informed that their agreements are no longer an absolute shield; contributions during the marriage can create a claim. However, it’s also important to note that the court’s intervention is not automatic – the spouse seeking relief must prove contributions and persuade the court that a transfer of assets is just. ANCs remain valid for all other purposes and couples’ day-to-day financial separation isn’t affected until a divorce or death scenario brings the question of redistribution.
Future Marriage Planning: Couples planning to marry will need to weigh their choice of matrimonial property regime in light of these changes. Previously, an “out of community without accrual” ANC offered certainty that each party’s estate would remain untouched by the other. Now, future spouses should acknowledge that if they opt for no accrual, courts still have a safety valve to prevent hardship. For many, the accrual system (which shares growth in estates) might become a more attractive or straightforward choice – it provides for sharing in a transparent way and might reduce the need for litigation later. Others who have good reason for a no-accrual contract (for instance, second marriages where each party wants to secure their estate for children from a prior marriage) can still do so, but should be advised to possibly include clauses anticipating contributions or even to waive the right to seek a redistribution (if the law will allow such a waiver – this might be a grey area to be tested). The key is that financial planning and antenuptial drafting must account for the new legal landscape. Attorneys should counsel clients on building provisions for fairness into their marriage contracts or at least making informed choices about accrual vs. no-accrual.
Accrual Claims vs. Redistributive Claims: Another implication is how these reforms sit alongside the accrual system. In accrual marriages, the lesser-accrued spouse already has a claim to equalize the estates (half the difference in growth). The new redistributive power won’t apply to accrual marriages (since they have their own sharing mechanism). But for practitioners, it means we now have parallel remedies depending on the regime: an accrual claim under the Matrimonial Property Act for accrual marriages, and a redistribution claim under the Divorce Act (as amended) for no-accrual marriages. The considerations are similar – both look at contributions and fairness – but the accrual is a formulaic entitlement while redistribution is discretionary. Clients should understand that if they exclude accrual, they are not opting out of all sharing, but rather swapping a guaranteed formula for a discretionary, case-by-case approach. Some might prefer the certainty of accrual, while others may trust equitable discretion – this should be part of advice when entering a marriage.
Spousal Maintenance and Protecting Vulnerable Spouses
The forthcoming changes also interact with issues of spousal maintenance and the general protection of economically weaker spouses:
Maintenance vs. Asset Division: Under current law, a spouse left with little to no property after a divorce might seek spousal maintenance (either rehabilitative or even lifelong, depending on their needs and the other’s ability). In many out-of-community/no-accrual divorces, maintenance has been the only solace for a disadvantaged spouse. With the introduction of asset redistribution, courts may lean towards awarding a greater share of assets instead of, or in addition to, maintenance. A lump sum or transfer of property can sometimes be more empowering than a right to monthly support. It gives the former spouse capital – for example, a paid-off house or a financial cushion – to rebuild their life, rather than relying on an ex-spouse’s ongoing payments. That said, maintenance will not disappear; it remains a remedy especially where the need is income (e.g. elderly spouses or someone who cannot work may still require maintenance even after getting a share of assets). Practitioners should be prepared to argue an optimal mix: perhaps a moderate asset transfer plus some maintenance for a period. The overarching goal of the court will be to prevent “manifest injustice” – a combination of equitable asset distribution and maintenance can be used to achieve that.
Vulnerable Spouses (Typically Women): These reforms explicitly aim to uplift spouses who have historically been vulnerable – often women who were full-time homemakers or caregivers. By valuing non-financial contributions equally, the law acknowledges the reality that marriage is an economic partnership even when estates are separate. For example, a wife who gave up her career to support her husband’s business and care for the home might, under old rules, have walked away with no assets in her name. Under the new regime, she can receive a portion of the marital assets by court order, recognising her invisible contributions. This significantly reduces the leverage the breadwinner spouse might have had in forcing an unfair settlement. It also provides a measure of financial security to the vulnerable spouse, reducing potential reliance on social grants or family support. In the case of death, a surviving spouse (who might have been financially dependent) can similarly claim a share to avoid destitution. Overall, the changes promote gender equality within marriage and at dissolution, by correcting the power imbalances that no-accrual marriages sometimes entrenched.
Forfeiture and Misconduct: One point to clarify for clients – especially the higher-earning spouses – is that the usual divorce principles like forfeiture of benefits due to misconduct remain applicable. For instance, if a spouse in a no-accrual marriage has committed gross misconduct (adultery, abuse, etc.) leading to divorce, the court can still order a forfeiture of patrimonial benefits so that the guilty party does not benefit from the marriage (this is separate from redistribution). The 2025 Bill does not abolish or diminish that; in fact, in Muslim marriages as noted, forfeiture now explicitly applies. So, a redistribution claim will be considered alongside the possibility of forfeiture – the court will balance what outcome is just. A client should understand that misconduct can affect the extent of any award. Essentially, equity is the guiding star: the reforms give courts a broader toolbox to reach a fair result, considering all circumstances of the marriage and its breakdown.
Illustrative Case Scenarios
To illustrate how these changes may play out, here are a few hypothetical scenarios:
Scenario 1: Post-1984 Marriage without Accrual – Equitable Divorce
Facts: Thandi and John married in 1990 out of community of property, with an antenuptial contract expressly excluding the accrual system. John was a young entrepreneur, and Thandi worked as a schoolteacher. After their first child was born, Thandi left her job to become a full-time homemaker, supporting John by managing the household and entertaining his business clients. Over 30 years of marriage, John built a successful company; most assets (the house, cars, investments) are registered in his name, while Thandi has very little in her personal estate. Now, at age 60, the marriage has broken down and they are getting divorced. Under the current law, Thandi would have no claim to any of John’s assets because of the out-of-community no-accrual regime – she would exit the marriage essentially with only personal effects, and possibly seek spousal maintenance. Under the proposed 2025 amendments, however, the divorce court can award Thandi a portion of John’s assets. She can apply for a redistribution order, arguing that her contributions as a homemaker enabled John to accumulate wealth. The court, after considering evidence, might order that Thandi receive (for example) 30% of John’s estate or specific assets like the matrimonial home. This would give Thandi financial security in her old age. John, on the other hand, retains the majority of his business assets but must part with a fair share to prevent Thandi from suffering an inequitable result. Outcome: With the new law, the divorce settlement is far more balanced – Thandi doesn’t simply rely on alimony; she becomes an owner of a substantial estate herself. This scenario demonstrates how a spouse who opted out of accrual in good faith is no longer at risk of an extreme outcome; the court’s intervention ensures both parties leave the marriage with a fair share of what was accumulated.
Scenario 2: Death in a No-Accrual Marriage – Protecting the Surviving Spouse
Facts: Maria and Sipho married in 1978 out of community of property (at that time, there was no accrual system). They remained married for 45 years until Sipho’s recent passing. Throughout their marriage, Maria was a homemaker who also helped without pay in Sipho’s small retail business. All major assets – including the family home, the business, and savings – were registered in Sipho’s name for convenience. In his will, Sipho left his estate to their two children and did not specifically provide for Maria (perhaps assuming the children would take care of her). Under the current law, Maria’s options are limited: since the marriage was out of community without accrual, she isn’t automatically entitled to any portion of the estate. She could claim maintenance from Sipho’s estate under the Maintenance of Surviving Spouses Act, but this would only provide monthly support, not ownership of assets. If the will is not contested, she might even risk having to move out of the family home if it was left to someone else. Under the new amendments, Maria can apply to the High Court (as the divorce court’s powers are extended via the Matrimonial Property Act amendment) for a redistribution order against the estate. She would need to show her indirect contributions to Sipho’s wealth (decades of supporting him and unpaid work in the business) and her financial needs. The court could then order that a portion of Sipho’s assets be transferred to Maria, notwithstanding the terms of the will. For example, the judge might award Maria full ownership of the house and a certain percentage of the business or investments, deeming that fair given her contributions and long marriage. This would override the will’s distribution to that extent (as permitted by the Constitution and the new law’s mandate to cure the injustice). Outcome: Maria, as the surviving spouse, is not left destitute or at the mercy of her children’s goodwill. She secures a solid share of the marital assets which reflects her role in their acquisition. This scenario shows how the reform addresses the plight of widows or widowers from separate property marriages – a group that previously had no recourse to claim assets and often fell into poverty. Now, the death of a spouse does not extinguish the economically weaker partner’s right to a just portion of the wealth accumulated during the marriage.
Scenario 3: Divorce in a Muslim Marriage – New Rights Exercised
Facts: Fatima and Ahmed were married in 2010 in terms of Islamic law (Nikah) and never registered a civil marriage. They are effectively married out of community of property (no accrual), since Islamic marriages traditionally do not default to community property. Over the years, Ahmed worked as an engineer while Fatima ran the household and cared for their three children. The marriage deteriorated, and in 2025 Fatima wants a divorce. Before the legal changes, Fatima faced a daunting situation: their Muslim marriage was not recognised under civil law, so she could not simply file for divorce in a South African court. She would have had to pursue a religious divorce (Talaq or Faskh) and any civil relief (like maintenance or property division) would be uncertain – potentially requiring separate legal action or being denied outright. After the 2024 Divorce Amendment Act, Fatima can approach the civil court to dissolve the marriage just like any other divorce. She files for divorce in the High Court under the Divorce Act, citing an irretrievable breakdown. In the proceedings, she invokes the new provisions: the court recognises the marriage as valid, ensures arrangements for the children’s care are in place, and crucially, considers redistribution of assets. Fatima provides evidence of how she contributed to the family and supported Ahmed’s career. Ahmed owns two properties and substantial savings; Fatima’s only asset is modest personal jewellery and a car. The judge, under Section 7(3) as now applicable to Muslim marriages, orders Ahmed to transfer one of the properties into Fatima’s name and pay her a lump sum amount, thereby adjusting the division of their assets. The court also grants child maintenance and spousal support for a limited period, to further assist Fatima’s transition. Outcome: Fatima emerges from the divorce with a home and financial security, rather than being left with nothing. This scenario reflects the profound change brought by legally recognising religious marriages: Muslim women now have full access to divorce courts, and judges can ensure an equitable outcome — including sharing of assets and enforcement of maintenance — which was not possible before. It is a “new dawn” for Muslim spouses: their marriages carry the same legal protections as others, and they need not fear that a religious divorce will leave them empty-handed.
Scenario 4: Customary Marriage – Polygamous Divorce after Reforms
Facts: Consider a customary polygamous marriage: David entered into customary marriages with two wives, Thuli (in 1995) and later Ayanda (in 2005). For years, because these were customary unions, the legal position was murky – especially for Thuli, the first wife married before the Recognition of Customary Marriages Act (RCMA) came into force in 2000. Traditionally, David as the husband had control over the family’s property. By 2025, David has substantial property (land, cattle, a minibus taxi business) all in his name. The relationships have deteriorated and both wives seek divorce. Thanks to the RCMA and its 2021 amendment, both Thuli and Ayanda’s marriages are recognised and treated as in community of property (in the absence of a specific contract saying otherwise). This means each wife has equal rights to the marital property acquired during her marriage, and David cannot insist it’s all “his.” In the divorce proceedings (each wife will sue David in separate actions), the court first ensures that division of the joint property occurs. Suppose Thuli’s marriage is effectively in community between her and David, and Ayanda’s similarly between her and David for assets acquired since 2005; the court will divide the estate for each union. Because it’s complex (David’s total estate must be split equitably between three parties), the judge uses the RCMA’s provisions and constitutional principles to allocate shares that ensure neither wife is left worse off. Under prior law (before recognition), Thuli and Ayanda might have been in a precarious position – possibly left with nothing or only what David deigned to give. Now, they walk away with ownership of property (for example, each gets certain land or vehicles, plus perhaps a share of the business or its proceeds). If David was at fault in the breakdown with Ayanda, the court might also consider forfeiture, so he doesn’t keep benefits unfairly. Outcome: The customary wives are protected by modern law: their contributions and partnership in the marriage are acknowledged by giving them tangible assets in the divorce. This scenario underscores that earlier reforms (RCMA 1998 and 2021) have already transformed customary marriage divorces – aligning them with civil marriages in terms of fairness and women’s rights. The 2025 Bill’s ethos is consistent with this trajectory: just as customary wives gained equality in property matters, now all spouses in any regime will have recourse to an equitable division. South African family law is moving towards a point where no spouse can be cast adrift with nothing purely because of the form of marriage or marital contract.
Questions and Answers
Q: What are the major changes proposed in the new divorce law amendment, and why are they being introduced now? A: The biggest change is that courts will be able to re-distribute assets between spouses who are married out of community of property without accrual. In plain language, if a couple kept their finances strictly separate (often due to an antenuptial contract) and the marriage ends – whether by divorce or even by death – a judge can now award a fair share 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. 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. Essentially, we’re closing a loophole in the Divorce Act – making sure that our divorce laws don’t impoverish someone who contributed to a marriage in non-financial ways. The changes are also bundled with updates to recognise all types of marriages (including religious and customary ones) and to strengthen the role of Family Advocates and mediation in divorce. It is a comprehensive overhaul to modernise family law in line with recent court decisions and social realities.
Q: Explain how these new asset redistribution powers will work? Who exactly will benefit from this? A: The new powers allow a court to transfer assets from one spouse to another at divorce if the judge believes it is just and equitable. The classic scenario is a couple who married out of community of property without the accrual system. Let us say one spouse has built up a business and properties in their name, while the other spouse maybe gave up their 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. With the reform, that spouse can ask the court for a share of the assets. The court will look at factors like how much they contributed to the household or the other’s success – contributions are not just money, they include raising a family or running a home. If it is convinced that, for example, the stay-at-home spouse enabled the breadwinner to prosper, the court can say: “Alright, transfer (say) 30% of your estate or this particular property to your wife/husband.” It’s not automatic 50/50 – it is about what is fair in each case. The people who benefit are those vulnerable spouses who previously got a raw deal: typically, older women married before accrual came in (pre-1984 marriages), or anyone who signed an antenuptial contract opting out of accrual, only to find themselves with no assets after years of marriage. They now have a safety net. It is also worth noting the law will protect surviving spouses – if your husband or wife dies and you’re in one of these separate estates marriages, you can apply to get a portion of the estate, rather than being left with nothing.
Q: What was the Constitutional Court’s role in prompting these changes? A: The Constitutional Court was central to this. In October 2023, the Court delivered a judgment that effectively said “Parliament, fix this problem in the divorce law.” They looked at the Divorce Act and found parts of it unconstitutional because it left a whole class of spouses unprotected. Specifically, the law only allowed redistribution of assets for marriages before 1984, and even then, only on divorce, not when a spouse died. So if you married after 1984 with an antenuptial contract excluding accrual, or if your spouse died, you were out of luck – no matter your contributions. The Court found this discriminatory, mainly against women, and said it violated equality rights. They gave Parliament 24 months to remedy the law. In the meantime, the Court itself provided an interim fix: they said, until the law is changed, judges should act as if those restrictive words in the Divorce Act are not there. So already, technically, courts can start granting these orders, but it is much better to have clear legislation. The General Laws Amendment Bill of 2025 is the answer to that. So, this is a direct follow-on from the Constitutional Court’s ruling. And it’s not the first time the Court has pushed family law reform – a recent example was in 2022 when it ordered recognition of Muslim marriages, which led to the Divorce Amendment Act of 2024. Essentially, the highest court identified that our divorce laws weren’t treating all marriages fairly, and now the government is doing what’s needed to comply with the Constitution.
Q: How does this affect antenuptial contracts? If a couple signed a contract to keep their estates separate, can a court now override that? A: This is a great question, because it touches on freedom of contract versus fairness. Couples will still be able to sign antenuptial contracts and choose to exclude community of property or accrual. 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. If enforcing the contract strictly would result in a seriously unfair outcome for one spouse, the court can step in and override it to an extent. The idea is not to toss contracts out the window, but to prevent unjust situations. 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. In practice, many couples might not even need this – if both worked and kept things separate, each leaves with what’s theirs and it’s equitable. The provision is really targeting those extreme cases of imbalance. It’s worth noting, too, that this is very similar to what’s already been the case for older contracts (pre-1984) – now it will just apply across the board. For lawyers drafting antenuptial contracts going forward, they will likely inform clients that opting out of accrual does not mean opting out of all sharing – a court can still intervene if justice demands. 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.
Q: What does the law now say about divorces for Muslim or customary marriages? A: The law has become much more inclusive in the last couple of years. For Muslim marriages – historically, these were not recognised by our civil law, which was a huge injustice to Muslim women in particular. In 2022 the Constitutional Court said “this cannot continue”, and as a result, from May 2024 we have an amendment that fully recognises Muslim marriages in the Divorce Act. This means if two people were married according to Islamic rites, they can now go to court to get a divorce decree just like any other married couple. The court will ensure children from that marriage are protected, and it can order maintenance, a fair division of assets, etc. In fact, the law explicitly allows courts to redistribute assets in a Muslim marriage divorce and to apply the same principles of forfeiting benefits for misconduct. 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. As for customary marriages (under African customary law), those have been recognised since the Recognition of Customary Marriages Act of 1998. Initially, there were some unequal aspects – especially for women in polygamous marriages – but those have been fixed by 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. And same-sex couples: since 2006, South Africa allows same-sex marriages through the Civil Union Act, and they have the exact same divorce rights as any heterosexual marriage. 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.
Q: When will these new divorce law changes to take effect, and what should people do in the meantime? A: The Bill is being introduced in 2025, and if all goes well, it should go through the parliamentary process this year.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.