Big changes to who gets what after divorce in South Africa
Justice Minister Mmamoloko Kubayi is preparing to introduce new divorce laws in South Africa by presenting the General Laws Amendment Bill, 2025, to Parliament.
These laws aim to implement changes mandated by the Constitutional Court, simplifying the process for spouses married out of community of property without accrual to receive their fair share in the event of divorce or death.
The minister stated that she would be introducing the new laws to the National Assembly shortly.
The proposed changes to South Africa’s divorce laws through the General Laws Amendment Bill could usher in a major shift in how marital property is divided, especially for spouses who have been left financially vulnerable after years of unpaid contributions to a marriage.
Family law attorney Bertus Preller welcomed the changes and said they bring long-overdue fairness to the system, particularly for women in non-accrual marriages.
The amendments follow a 2023 Constitutional Court ruling that found it unconstitutional for spouses, often homemakers, married out of community of property without accrual to walk away with nothing after divorce or the death of their partner.
“It stems from a reform that aimed to protect spouses who were often left with nothing after divorce or death, despite years of non-financial contributions to the marriage,” Preller said.
He explained that the current law is especially harsh on spouses who stayed at home to raise children or manage the household while their partner advanced financially.
“Women in those circumstances would only have a maintenance claim in a long-lived marriage, which was completely unfair,” Preller added.
The issue stems from the cut-off date of 1 November 1984, when the Matrimonial Property Act came into effect.
Before that, a spouse could bring a “redistribution claim” to request a share of the estate in divorce. But marriages entered after that date without accrual offered no such remedy.
“All marriages now, after 1 November 198, that spouse will now have a redistribution claim for assets in the divorce,” Preller said.
New laws not retrospective
This redistribution right would also extend to cases involving death, not just divorce. Previously, if a spouse died without a will, the surviving spouse in a non-accrual marriage might be excluded entirely.
“Now, that wife, like in terms of an accrual case, would have a claim for the redistribution of assets,” Preller said.
He pointed to the Bwanya Constitutional Court case, where a woman not legally married to her partner was allowed to claim from his estate after his death.
Despite the positive steps forward, Preller warned that inequality remains. Even in accrual marriages, wealth can be shielded through legal structures.
“You can actually contract out… You can put assets out of the reach of the other spouse by naming them as excluded assets,” he said. This often happens through trusts or other mechanisms, particularly in high-net-worth cases.
Preller still believes the changes are fair and restore the discretion that courts had before 1984 to allow equitable transfers of assets in divorce.
However, he cautioned that this new mechanism can only be triggered in divorce trials, not settlements. “You’re going to see a lot more contested divorces in my view going forward,” he said.
He acknowledged concerns about potential abuse, where one spouse may choose not to work and still claim part of the estate. However, Preller emphasised that courts should consider the facts of each case.
“If someone deliberately does not contribute, the court has the discretion to transfer a percentage of the assets from 10% to half of the estate,” he explained.
While the law is gender-neutral and will apply to all spouses, Preller noted that the majority of cases will likely involve women, including those in Muslim and same-sex marriages.
“It’s not only women. We see a lot of cases where the woman is the breadwinner,” he said. In those cases, a husband who played the homemaker role would also be eligible to claim redistribution.
However, the news is less hopeful for those already divorced under the old system. The new rules will apply only to future marriages and current divorce cases that are still pending.
“That’s the sad part. If it were to be retrospective, the court roll would be completely flooded,” he added.
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