Warning for married couples in South Africa
With South Africa heading for changes to laws regulating marriages in the country, property and legal experts have warned happy couples of all kinds to have another look at their administrative affairs.
Justice Minister Mmamoloko Kubayi is preparing to introduce new divorce laws in South Africa by presenting the General Laws Amendment Bill, 2025, to Parliament.
Even though the laws are presented as changes to South Africa’s divorce laws, they apply to all terminations of a union, including through death.
The main changes in the laws are for how spouses married out of community of property without accrual are treated, allowing them to make fair claims on their partner’s estate when marriages end in death or divorce.
Under the current laws, these spouses are left with nothing despite years of non-financial contributions to the marriage.
While the proposed legal changes will bring fairness to the process, they come with two big caveats: the first is that it will not be applied retroactively, so those who are already divorced will still lose out.
The second, bigger caveat, is that the courts may have the power to overrule standing antenuptual agreements (aka prenups).
While the new law will not invalidate antenuptial contracts, it does overlay 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.
Because of these coming changes, various advisors and experts have urged couples to examine their current marriage arrangements and consider where they stand.
According to Renier Kriek, Managing Director at home loan provider, Sentinel Homes, this is particularly true when it comes to assets like homes or property.
He said that couples need to consider the implications of what happens to these assets before tying the knot. If they’ve already done so, then now is as good a time as any to do it.
The arrangement should consider all properties, whether for habitation, business or investment—everything should be included when determining the marriage.
Kriek outlined the main types of agreements, including the default if you haven’t opted for anything specific.
In community of property
By law, without an antenuptial agreement, South Africans are automatically considered to be married in community of property.
Any properties you owned before marriage or acquired afterwards belong equally to you and your spouse.
They can also be attached to pay off your spouse’s debt, and you can’t sell them or buy more without your partner’s consent.
At divorce, any properties and other assets are divided equally and on death, a surviving spouse may inherit them if they are bequeathed in the deceased spouse’s will.
It also doesn’t matter who paid the bond – this form of marriage determines who gets what in the end. Who paid for the home or other asset is irrelevant.
“I don’t know an attorney who would recommend this model of marriage to their clients,” said Kriek.
“It’s impractical to have the parties bound at the waist as neither can act commercially without the other’s consent. In addition, it’s poor risk management because all the assets are exposed to either party’s actions.”
Out of community of property without accrual
Historically, the growth of antenuptial contracts threatened to leave financially inactive spouses with nothing at divorce.
Therefore, by default, South African law imposes an accrual system on marriages out of community of property.
For total financial independence, your antenuptial must explicitly state that accrual is excluded. This is called the “cold exclusion.”
If married by the cold exclusion, all the assets you acquired before and during marriage remain yours and cannot be attached to your spouse’s debts.
You can also buy and sell property without their consent, and engage in commercial activity unfettered by the bonds of matrimony.
At divorce, you leave with all your assets and just have to worry about disposing of jointly purchased property. On death, the surviving partner gets only what was bequeathed to them.
This model is ideal for couples who want to retain their financial freedom, grow their wealth independently, and protect their assets from each other’s creditors.
“Just remember that maintenance claims are potentially open to all spouses on the dissolution of the marriage, even if the parties chose the cold exclusion,” Kriek said.
“For entrepreneurs and investors, it protects their business portfolio while sparing their partners the financial risks they willingly take on.”
Out of community of property with accrual
Without an accrual exclusion clause in your antenuptial agreement, the accrual system automatically applies.
Assets you owned before and those acquired after marrying remain yours alone, cannot be attached to pay creditors, and you are free to buy and sell property at will.
However, at divorce or death, a person can claim half of the difference between their estate and their spouse’s higher-valued estate.
In effect, it’s “in community of property” at the end, without all the restrictions during the marriage.
“It ensures both come away equal, and allows for one spouse to take time off to rear the children, or for one to work to put the other one through school or university, even though they are married out of community of property,” Kriek said.
“This is because, in the end, there will be a divvying up of assets. However, it could still mean losing the property you owned separately because assets may be sold to cover the accrued payment due on the dissolution of the marriage.”
No marriage
Kriek warned that even couple who are unmarried, such as life partners, people cohabiting or ‘common-law spouses’ could find themselves in a situation where their assets are in question.
“Never assume there’s no such thing as a common-law spouse in South Africa. Even a life partner may gain ownership of your assets, without any formal ceremony or registration,” he said.
Legal experts have noted that South Africa has no automatic protections in place for unmarried couples, with most pushed to enter into at least a cohabitation agreement to iron out the administrative details of their arrangement.
A cohabitation agreement is a legal document that helps define rights and protect contributions to avoid confusion and messy legalities if long-term relationships end in separation or death.
Without a legal contract, it may fall to the courts to determine what is owed to whom, which could entail a costly and lengthy process requiring documented proof of someone’s contributions to a relationship.
In these events, it could end up that one partner’s assets get split, or someone is granted a claim on the other’s estate. Things get more complicated if shared assets and children are involved.
“If you are buying a property with a life partner or other romantic interest, please be sure to have a partnership agreement drawn up by an attorney,” Kriek said.
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