Changes for marriage, prenups and divorces in South Africa
South Africa’s new Marriage Bill is currently being processed by the National Council of Provinces, marching steadily towards the desk of president Cyril Ramaphosa to be signed into law.
The bill is a landmark pice of legistlation for the country which aims to bring South Africa’s fragmented marriage laws under a single, inclusive framework.
While the new consolidated marriage law is still a few steps away from being enacted, the 2023 Bill proposes various changes and introduces significant reforms, that many South Africans, married and unmarried will need to take note of.
Some of the less controversial changes include the prohibition of child marriages andequal legal capacity for spouses.
However, the recognition of diverse marital practices and a more progressive shift toward a more inclusive and coherent legal framework does present some complications.
The Bill is currently in the Public Participation phase and provincial hearings have been conducted in the North West, Free State and Northern Cape.
The Portfolio Committee on Home Affairs will continue consultations in the remaining provinces before finalising its recommendations.
The Bill seeks to consolidate South Africa’s existing marriage legislation in the Marriage Act, Civil Union Act, and Recognition of Customary Marriages Act.
It includes common law and religious marriages that are not automatically legally recognised, and brings them into one comprehensive statute.
According to Sushila Dhever and Andile Msane from Fasken Attorneys, this should simplify legal processes and reduce confusion around marital rights and recognition.
“The Bill promotes fairness and equality by ensuring that all spouses, regardless of gender, sexual orientation, religion, or cultural background, are treated equally under the law,” they said.
“It strengthens protections around property rights, inheritance, and decision-making within marriage.”
New grounds for divorce and re-registration
The coming laws will offer equal protection, in terms of heritance, spousal maintenance and divorce, to spouses in religious marriages and same-sex marriages that have been afforded to spouses in civil marriages in terms of the Marriage Act.
In Chapter 6, the bill sets out how property and dissolution matters will apply to different types of marriages, including polygamous unions.
Polygamous marriages entered into before the Bill comes into effect, and that were not registered under customary law, will continue to be governed by the law that applied at the time of the marriage.
However, if any of the parties enter into additional marriages after the Bill is enacted, all polygamous marriages involving those parties will be governed by the New Marriage Bill.
“This approach ensures continuity for existing unions while providing a clear legal framework for future polygamous marriages,” the legal experts said.
Notably, all parties will now have to voluntarily choose a matrimonial property system before solemnising a marriage.
If spouses choose to marry out of community of property—whether with or without accrual—they must conclude a prescribed antenuptial contract before registration.
In terms of the Bill, and with the courts approval, spouses will be able to change their matrimonial property system if they have sound reasons, have informed all creditors and can show that no one will be prejudiced by the change of matrimonial property system.
The Bill also creates additional grounds for divorce such as emotional harm, coercion and financial abuse and encourages mediation as per Rule 41A of Uniform Court Rules.
The Bill introduces penalties for forced marriages and child marriages.
The implementation of the Bill will require parties in existing marriages which were previously excluded, unregistered or unrecognised in South Africa—such as religious marriages, same-sex unions and customary marriages—to be re-registered.
This is to ensure they comply with the new legal framework, if they wish to ensure full legal recognition and access to rights such as inheritance, spousal maintenance, and protection in divorce or death.
Antenuptial contracts will undergo re-registration and, notably, will now apply to all forms of marriage not just civil unions.
“This marks a significant shift toward a more unified and equitable system,” the experts said.
“At its core, the Bill reflects South Africa’s ongoing commitment to promoting equality, inclusivity, and the protection of human rights.”
Importantly, it introduces stronger safeguards for individuals in vulnerable positions, particularly women and children, reinforcing the state’s role in upholding dignity and justice within the institution of marriage.
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