South Africa’s Family Law Overhaul Set to Reshape Property Rights

South Africa’s family law is poised for one of its most significant reforms in decades. Justice Minister Mmamoloko Kubayi is expected to table the General Laws (Family Matters) Amendment Bill in Parliament this year, introducing sweeping changes to how property and assets are divided after divorce or death.

 

The Bill seeks to recognise the value of non-financial contributions -- such as homemaking or supporting a spouse’s career -- in property settlements, even when antenuptial contracts exist. If passed, the changes would fundamentally alter the legal landscape for married couples.

 

“This is one of the most substantial adjustments we’ve seen in matrimonial property law in years,” said Grant Smee, CEO of Only Realty Property Group.

 

While civil marriages are declining -- with 130,806 registered in 2023, according to Statistics South Africa -- Smee noted that marriage remains a cornerstone institution with profound implications for property ownership and inheritance.

 

Key Legal Reforms

The Bill follows a 2023 Constitutional Court ruling calling for greater equity in divorce and estate matters. It will amend the Divorce Act, Matrimonial Property Act, and Mediation in Certain Divorce Matters Act. Among the most notable proposals:

 

• Pre-1984 marriages (before the accrual system): Courts may redistribute assets upon death or divorce.

• Post-1984 marriages with no accrual: Even if antenuptial contracts exclude accrual, courts may intervene where fairness demands.

 

“This departs from the current position, where a spouse often walks away only with what is legally theirs, regardless of broader contributions,” Smee explained.

 

Recognising Non-financial Contributions

Under the reforms, courts will weigh non-financial contributions -- raising children, homemaking, or enabling a spouse’s career -- when deciding on asset division.

 

“This isn’t about a default 50/50 split,” said Smee. “It’s about examining whether one spouse enabled the other to build wealth and ensuring a fair outcome.”

 

Courts will consider factors such as marriage duration, household arrangements, and the extent of contributions. Assets subject to redistribution may include:

 

• Primary and investment properties

• Property-linked business interests

• Assets in a deceased spouse’s estate

 

Currently, spouses in non-accrual marriages often have no claim unless specified in a will. The Bill would allow redistribution from the deceased’s estate, offering stronger protection for surviving spouses.

 

What Couples Should Do Now

Smee urged married and engaged couples to review their legal arrangements in light of the pending changes:

 

• Review antenuptial contracts: They remain valid, but courts may override unfair terms. Contracts should include contingency clauses for contributions and future disputes.

• Consider postnuptial adjustments: Couples may apply under Section 21 of the Matrimonial Property Act to amend their property regime.

• Plan contracts carefully: Clearly define exclusions, reassess whether the chosen regime remains suitable, update wills, and account for dependents to avoid unintended outcomes.

 

“These reforms acknowledge that contributions aren’t always financial,” Smee said. “They aim to strike a fairer balance in recognising the sacrifices made within a marriage, ensuring more equitable distribution of property and assets.” 

 

 

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