South Africa’s divorce and matrimonial property laws are on the brink of one of the most significant reforms in decades. The proposed General Laws (Family Matters) Amendment Bill, announced by the Minister of Justice and Constitutional Development, aims to give courts powers to redistribute assets in certain marriages out of community of property without accrual, even when an antenuptial contract states otherwise.
This legal shift, expected to be tabled in Parliament within the year, stems directly from a 2023 Constitutional Court judgment that declared it unconstitutional for spouses who made substantial non-financial contributions to walk away from a marriage with no share of the assets. The reform is designed to close a long-standing gap in the law, with particular impact on older marriages and those that opted to exclude the accrual system.
Background: Understanding Marital Property Regimes
Before unpacking the proposed change, it is important to understand how marriage property regimes work in South Africa.
- In community of property – All assets and debts are shared equally from the date of marriage. Upon divorce, each spouse is entitled to half, unless the court orders otherwise.
- Out of community of property with accrual – Each spouse retains their own estate during the marriage, but any growth in value of their estates during the marriage is shared equally at divorce.
- Out of community of property without accrual – Each spouse retains ownership of their own assets, both before and after the marriage. No sharing of accumulated wealth occurs at divorce.
It is the third category—marriages out of community of property without accrual—that has been at the heart of the Constitutional Court’s concern. In such arrangements, one spouse could accumulate substantial assets while the other, often having contributed non-financially (raising children, managing the household, supporting a business), could be left with nothing at divorce.
The 2023 Constitutional Court Ruling
In 2023, the Constitutional Court delivered a landmark judgment in Bwanya v The Master of the High Court, Cape Town and Others (CCT 241/20). Although this case primarily addressed the rights of unmarried life partners, the Court emphasised a broader constitutional principle: it is unfair and discriminatory to ignore non-financial contributions to a relationship when determining asset division.
The Court noted that section 7(3) of the Divorce Act, which allows courts to redistribute assets in certain marriages, did not apply to marriages out of community of property without accrual unless they occurred before the accrual system was introduced in 1984. This omission meant that many spouses—predominantly women—were excluded from any share of the wealth built during the marriage.
The Constitutional Court called on Parliament to correct this imbalance, paving the way for the Family Matters Amendment Bill.
What the Family Matters Amendment Bill Proposes
Announced in June 2025 by Minister Mmamoloko Kubayi, the Family Matters Amendment Bill proposes key changes to three pieces of legislation:
- The Divorce Act 70 of 1979
- The Matrimonial Property Act 88 of 1984
- The Mediation in Certain Divorce Matters Act 24 of 1987
The Bill’s central change is straightforward yet transformative: Courts will have the discretion to order asset redistribution in certain marriages out of community of property without accrual when it is just and equitable to do so.
Scenarios Where the Law Will Apply
The proposed law specifically targets two main scenarios:
1. Pre-1984 Marriages Without Accrual
Before 1 November 1984, the accrual system did not exist. Many couples married out of community of property under a complete separation regime. The new law will allow courts to order redistribution not only upon divorce but also upon the death of a spouse.
2. Post-1984 Marriages Excluding Accrual
Since 1984, couples have had the option to exclude accrual through an antenuptial contract. Under the current law, such contracts are absolute in divorce proceedings, leaving no room for redistribution. The proposed amendment will give courts the power to intervene in cases where enforcing the contract would result in serious unfairness.
How This Will Affect Antenuptial Contracts
Under the current system, antenuptial contracts are binding agreements that determine property division at divorce. The proposed reform does not abolish antenuptial contracts, nor does it automatically convert them into shared property regimes.
Instead, it introduces a statutory fairness clause—allowing the court to override parts of the contract only when strict enforcement would result in an unconscionable outcome.
This means:
- Couples can still choose a complete separation of property.
- The court’s power will be discretionary, not automatic.
- Redistribution will be based on what is “just and equitable” given the circumstances.
Legal Tests and Considerations
When deciding whether to override an antenuptial contract, the court will likely consider:
- The financial and non-financial contributions of each spouse.
- Sacrifices made by one spouse for the benefit of the other.
- The length of the marriage.
- The economic disparity between the spouses at divorce or death.
- Any existing agreements on asset division.
This approach is intended to protect vulnerable spouses without undermining freedom of contract in marriages where both parties genuinely intend to keep their finances separate.
Impact on Divorce Proceedings
Practically, the reform means that:
- In a divorce where a spouse seeks redistribution, they will need to apply to the court under the new provisions.
- Evidence will be required to prove the extent and nature of contributions.
- The court will have flexibility in its orders—it could award a specific asset, a percentage of the estate, or a financial settlement.
Importantly, the change will also apply in cases of death, allowing a surviving spouse to claim a share of the estate even if excluded by antenuptial agreement.
Recognition of All Marriage Types
The Bill aligns with recent developments recognising various forms of marriage:
- Civil Marriages – Already fully covered under existing matrimonial property laws.
- Customary Marriages – Recognised under the Recognition of Customary Marriages Act 120 of 1998, with default in-community-of-property rules unless excluded.
- Muslim Marriages – Formally recognised in 2024, giving spouses access to the same divorce protections as civil marriages.
- Same-Sex Marriages – Recognised since 2006 under the Civil Union Act, with equal divorce rights.
By including all recognised marriage forms, the law ensures no spouse is left without legal recourse due to the type of marriage they entered.
Practical Advice for the Public
For those planning to marry:
- Consider your property regime carefully. Out of community without accrual may no longer guarantee absolute separation of assets.
- Seek legal advice when drafting an antenuptial contract—especially on how contributions will be recognised.
For those already married without accrual:
- Be aware that your spouse could seek redistribution in the event of divorce or death.
- You may wish to review your financial arrangements and estate planning in light of the proposed changes.
For those facing divorce:
- Gather evidence of both financial and non-financial contributions.
- Seek legal advice on whether a redistribution application is viable under the new rules.
Future Implications for Family Law
If passed, the amendment will bring South African family law closer to international norms that recognise the value of non-financial contributions. It will also:
- Encourage fairer settlements.
- Reduce the economic vulnerability of non-earning spouses.
- Influence how antenuptial contracts are drafted going forward.
However, it may also lead to increased litigation in divorce cases, as parties test the limits of the new provisions.
Conclusion
The proposed power for courts to override antenuptial contracts in certain cases represents a balanced attempt to uphold contractual freedom while preventing manifestly unjust outcomes. For many spouses—particularly those who have made years of unpaid contributions to a marriage—it could be life-changing.
As the Family Matters Amendment Bill progresses through Parliament, individuals are encouraged to seek legal advice on how it may affect their rights. The change, once enacted, will mean that in South Africa, fairness will be a legal principle built into every marriage contract.
References
Constitutional Court of South Africa. (2023). Bwanya v The Master of the High Court, Cape Town and Others (CCT 241/20). Available at: https://www.concourt.org.za
Department of Justice and Constitutional Development. (2025). Media Statement: Family Matters Amendment Bill Announcement. Available at: https://www.justice.gov.za
Matrimonial Property Act 88 of 1984. Government of South Africa.
Divorce Act 70 of 1979. Government of South Africa.
Recognition of Customary Marriages Act 120 of 1998. Government of South Africa.
Civil Union Act 17 of 2006. Government of South Africa.
Moonstone Information Refinery. (2025). Proposed Divorce Law Reforms to Allow Asset Redistribution in Certain Marriages.