Marriage, divorce and property changes being considered for South Africa

The South African Law Reform Commission (SALRC) has called for comment on a review of South Africa’s matrimonial property laws.

South Africa’s Matrimonial Property Act has been in place for almost 40 years, and was introduced on 1 November 1984 to deal with shortcomings in the matrimonial property law at the time.

A number of social and legal changes since 1984 suggest that a review of the law with regard to matrimonial property is necessary to ensure that it meets current needs, the SALRC said.

“South African matrimonial property law contains certain default statutory provisions which purport to apply to all marriages unless the spouses enter into antenuptial contracts. However, the applicable rules often result in substantive gender inequality leaving women – and the children for whom they are responsible – destitute at the end of the marriage,” the commission said.

In addition, the different property regimes applicable to customary and Muslim marriages and piecemeal changes in matrimonial property regimes effected by the courts as a result of litigation since the adoption of the final Constitution created different systems of property administration and distribution for different marriages, it said.

“The differences may depend on the dates when couples entered into marriage, whether they were African, whether they were married in terms of legislation applicable in the former Apartheid homelands.

“Spouses in marriages that receive no legal recognition, including those in religious marriages, and people who, knowingly or unwittingly, have not entered into any formal marriages have no statutory rights to share in property which has been amassed during their relationships.”

The negative impact of this lack of legal rights falls mainly on women, who may have contributed to their partners’ estates, but yet are left destitute when relationships end, the commission said.

Some of the specific questions proposed by the review include:

  • Should there be a default property system across different marriages and unmarried life partnerships?
  • Should there be a default property system for all marriages in which there are antenuptial contracts?
  • Should both spouses who enter into antenuptial contracts be required to receive separate legal advice?
  • Should lawyers who draft antenuptial contracts have a duty to fully explain the nature and consequences of the antenuptial contracts, both at the time of concluding the marriage and at the time when the marriage is dissolved?
  • Do the mechanisms aimed at preventing spouses from concealing and dissipating assets pending a divorce provide adequate protection for spouses in marriages?
  • Should courts be able to use their discretion to redistribute pension benefits in marriages out of community of property without the accrual system?
  • Should living annuities be treated as pension benefits at the time of divorce?
  • Should family homes be treated exactly like other assets at divorce or should special rules apply to them?
  • Should courts take account of financial and non-financial contributions to the family home in considering how it should be distributed at divorce?

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Marriage, divorce and property changes being considered for South Africa