New law could be a big problem for property owners in South Africa
South Africa is moving to overhaul its marriage laws in a way that could reshape property ownership and create new challenges for homeowners, banks, and the wider property market.
This is according to Renier Kriek, managing director at Sentinel Homes, who said the changes could have a big impact on the property market 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 said she would introduce the new laws to the National Assembly shortly.
“This injects new uncertainty into how homes, bonds, and investment properties are split and what banks and conveyancers must do next. It’s a serious issue,” Kriek explained.
Until now, South African law has been relatively clear. “You had one of three choices. If you did nothing, you were married in community of property, which meant the spouses shared everything in one joint estate,” he said.
“Alternatively, you could be married out of community of property, meaning each spouse kept their patrimonial independence.”
“And within that, there were two options: complete separation of estates, or a middle option with accrual, where the spouse with the smaller increase in assets would share in half of the difference.”
The Constitutional Court, however, ruled three years ago that the complete separation of estates could be unconstitutional in some cases.
“Typically, this happens where one spouse, often the wife, sacrifices her career to raise children while the other builds up significant assets,” Kriek added.
“In such cases, the spouse who gave up their earning potential would walk away with nothing. The courts found that it was unjust and inequitable.”
The new amendments aim to fix this imbalance by giving judges the discretion to redistribute assets.
However, Kriek warned that the reform will place additional strain on the legal system. “Every divorce attorney in the country will now include a claim for redistribution where they represent the financially more vulnerable spouse,” he said.
“That means courts will definitely have a larger burden, and most divorces will now have an additional point of dispute.”
Implications for married property owners
For homeowners, this raises some difficult choices. If you’re an existing homeowner and you want to protect your assets, you can restructure into a company or a trust.
However, trusts are often attacked in divorce cases, and both options come with tax and financial planning consequences.
Kriek added that you may also have to reapply for the mortgage in the name of the company, which might require a bigger cash contribution.
“Anyone with significant assets—like a family home or a property investment portfolio—will need proper legal advice if they want to shield those assets,” he said.
Banks, too, will feel the ripple effects. The banks are not directly disadvantaged, because contracts come first and only the net value accrues to the estate.
“However, more properties may be sold due to divorce to comply with redistribution orders. That could shorten the average lifespan of home loans, which means banks will probably have to price slightly higher to recover their costs,” Kriek explained.
For estate agents and conveyancers, Kriek noted that the risk is minimal. “There’s no real disclosure risk. If someone is married, you’ll find out through the KYC process.”
“If they’re divorcing, you’ll know that too. The courts will prescribe redistribution orders, and those orders will be binding.”
Importantly, the reforms will apply across the board. “It’s not just the primary residence. Everything in the patrimony of a spouse, holiday homes, investment properties, anything valuable, can be redistributed by the court on the basis of fairness.
The amendments also extend recognition to marriages previously excluded from full legal protection.
Kriek noted that the changes are a double-edged sword. They bring long-overdue protection to vulnerable spouses, but at the cost of legal certainty.
“This reform is going to affect homeowners, banks, and the courts. It’s well-intentioned, but it will make property ownership in marriage less predictable, and that’s something couples need to think about very carefully.”
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