Impact of SA’s divorce law changes on property ownership

SOUTH Africa’s family law is set for a significant shift, with proposed amendments that could impact how your property - and other assets - are divided in the event of divorce or death, even if there’s an antenuptial agreement in place.

- GRANT SMEE

This is one of the most substantial adjustments we’ve seen in matrimonial property law in some time. The goal is to promote fairer outcomes, particularly for spouses who’ve made meaningful non-financial contributions to the marriage.

Statistics South Africa shows that 130,806 civil marriages were registered in 2023, while in decline, marriage remains a commonplace institution in South Africa with 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 by granting courts broader discretion in terms of fair asset redistribution.

The proposed amendments will affect the Divorce Act, Matrimonial Property Act, and Mediation in Certain Divorce Matters Act, with the most notable proposed reforms including: 1. Pre-1984 marriages (before the accrual system): Courts may now redistribute assets upon death or divorce. 2. Post-1984 marriages without accrual: Even with an antenuptial contract excluding accrual, courts may intervene to redistribute assets if deemed just.