New divorce laws for South Africa

Justice minister Mmamoloko Kubayi is set to introduce new divorce laws for South Africa, by tabling the General (Family) Laws Amendment Bill, 2025, to parliament.

The laws will give effect to changes ordered by the Constitutional Court in 2023, to make it easier for spouses married out of community of property without accrual to get their fair share when the marriages end in divorce or death.

The minister said she would introduce the new laws to the National Assembly “shortly”.

The bill seeks to amend certain aspects of the Divorce Act of 1979, which arise from the amendments to the Mediation in Certain Divorce Matters Act 1987.

It also aims to provide for the transfer of assets by a court granting a decree of divorce regarding a marriage out of community of property for those entered into before the commencement of the Matrimonial Property Act of 1984.

The new bill will also amend the Matrimonial Property Act to provide for the distribution of matrimonial property in a marriage out of community of property upon the dissolution of the marriage by death.

The last Act that the bill will amend is the Mediation in Certain Divorce Matters Act of 1987, which will provide for the functions of the Office of the Family Advocate.

The Mediation in Certain Divorce Matters Act will further be amended regarding long and short titles, and other connected matters.

Why the changes are needed

Many of the changes in the bill stem from the Constitutional Court ruling in October 2023 which found that certain parts of the Divorce Act were unconstitutional and invalid.

These relate to couples married “out of community of property”, with the intention now to make it fairer on certain spouses when these marriages end.

When married out of community of property, the estates of spouses are kept separate, and neither spouse has a claim against the other spouse’s estate even if they contribute to the maintenance or growth of the other’s estate.

In November 1984, the Matrimonial Property Act introduced the concept of “accrual”, which allows spouses who are married out of community of property to share in the growth of each other’s estates while still maintaining their separate estates.

Upon divorce or death, the spouse with the smaller accrual or no accrual has a claim against the spouse with the bigger accrual.

Marriages before 1984 did not have the option of accrual, and would have to apply to a divorce court for a redistribution order. This was enabled through amendments to the Divorce Act.

However, the Constitutional Court found this to be invalid, as the Divorce Act did not allow this for spouses who were married out of community of property without accrual after 1 November 1984, nor for marriages ending in death before or after the 1984 change.

With the expected amendments, spouses who find themselves in financially vulnerable positions when their marriages out of community of property without accrual will benefit.

Other big changes for divorces coming

If the new bill passes through parliament and is assented to, it would mark another significant change to divorce laws following President Cyril Ramaphosa signing the Divorce Amendment Bill last year.

The Divorce Amendment Bill brought significant changes to Muslim divorces in the country and comes after a lengthy court battle.

In the Women’s Legal Centre Trust v President of the Republic of South Africa and Others, the Constitutional Court ruled that the act was unconstitutional as it excluded Muslim marriages.

The non-recognition of Muslim marriages in civil law meant that a person, particularly a woman, who is married in terms of Islamic law had no right to seek a divorce from a court.

Al Jama-Ah leader Ganief Hendricks, who introduced a private member’s bill on the matter, said that Muslim families suffered greatly due to not having the same legal remedies offered in the Divorce Act.

Muslim women under Sharia law are often left destitute if a divorce is initiated, as they cannot try to claim patrimonial benefits following dissolution. 

The Divorce Amendment Bill thus introduced the following changes:

• To insert a definition of a Muslim marriage,
• To provide for the protection and to safeguard the interests of dependent and minor children of a Muslim marriage.
• To provide for the redistribution of assets on the dissolution of a Muslim marriage
• To provide for the forfeiture of the patrimonial benefits of a Muslim marriage.

“The amended legislation addresses shortcomings in the Divorce Act of 1979, which differentiated between people married in terms of the Marriage Act and people married according to Muslim rites, especially women,” said the Presidency.