The bill is expected to be introduced and processed within the current year.<\/p>\n\n\n\n
The main aim of the bill is to change how assets are divided when marriages end, targeting a critical gap in current legislation that has left spouses financially vulnerable when their marriages end through divorce or death.<\/p>\n\n\n\n
Under existing law, spouses married out of community of property often walk away with nothing, despite years of non-financial contributions to their families and partners\u2019 success.<\/p>\n\n\n\n
The bill will change this to allow the courts to redistribute assets in certain marriages<\/strong> that are out of community of property without accrual, ensuring a \u201cfair share\u201d for spouses who previously had no claim despite contributing to the marriage.<\/p>\n\n\n\n The changes stem from the Constitutional Court ruling in October 2023<\/strong><\/a>, which found that certain parts of the Divorce Act were unconstitutional and invalid because they left these spouses out in the cold.<\/p>\n\n\n\n According to Bertus Preller<\/strong><\/a>, a family and divorce law attorney and mediator at Maurice Phillips Wisenberg, while the laws have a very clear and almost niche legislative case to address, the changes could have an impact on antenuptial agreements (aka “prenups”) in the country.<\/strong><\/p>\n\n\n\n These contracts are usually signed before a marriage is concluded, with both spouses on the same page about how their finances will be handled. They have, until now, been regarded as absolute.<\/p>\n\n\n\n Preller noted that while the new law will not invalidate antenuptial contracts, it does overlay a statutory power for courts to intervene<\/strong>, notwithstanding what the contract states.<\/p>\n\n\n\n “In other words, even if spouses agreed to complete separation of property, a court can still order a redistribution if one spouse would otherwise face serious inequity<\/strong>,” he said.<\/p>\n\n\n\n This is a notable shift from the absolutism of contractual freedom in matrimonial property that is currently held.<\/p>\n\n\n\n “Effectively, the court\u2019s equitable jurisdiction will trump the antenuptial contract in cases of need,” he said, adding that those entering these contracts need to be warned that they are no longer absolute.<\/p>\n\n\n\n “Couples planning to marry will need to weigh their choice of matrimonial property regime in light of these changes,” Preller said.<\/p>\n\n\n\n “Previously, an ‘out of community without accrual’ antenuptial contract offered certainty that each party\u2019s estate would remain untouched by the other.”<\/p>\n\n\n\n “Now, future spouses should acknowledge that if they opt for no accrual, courts still have a safety valve to prevent hardship.”<\/p>\n\n\n\n As parliament waits for the divorce laws to be tabled, lawmakers are progressing in processing other changes to marriages in South Africa.<\/p>\n\n\n\n The Portfolio Committee on Home Affairs will hold the next round of public hearings on the Marriage Bill of 2023 this coming weekend\u2014the sixth province to be consulted in the public participation process.<\/p>\n\n\n\n The Marriage Bill is a crucial piece of legislation that aims to rationalise a host of marriage laws in the country and update the way different types of marriages are handled.<\/p>\n\n\n\n It will introduce a single marriage statute to replace the three existing marriage laws governing civil marriages, customary marriages and civil unions.<\/p>\n\n\n\n Under the new laws, all marriages in South Africa will be recognised, irrespective of religion, custom, sexual orientation, or other beliefs.<\/p>\n\n\n\n All marriages, concluded either following the tenets of any custom, religion or belief, will be recognised.<\/p>\n\n\n\n The bill will also ensure that all marriages concluded before the bill’s commencement continue to be recognised as marriages under South African law.<\/p>\n\n\n\n The laws will also prohibit marriages involving children, adding a new requirement that both prospective spouses be at least 18 years old. They also introduce offences and penalties for entering or concluding marriages with minors and solemnise such marriages.<\/p>\n\n\n\n The bill will further ensure that the Minister of Home Affairs can designate marriage officers from all sectors of society, including traditional leadership, and sets out the requirements for designation as a marriage officer.<\/p>\n\n\n\n According to the committee, its engagements with communities so far, including those in Gauteng, KwaZulu-Natal, the Eastern Cape, Mpumalanga, and the North West, have been positive.<\/p>\n\n\n\n Feedback from the public consultations has reflected hope that the laws will address fake and fraudulent marriages, where South Africans have found themselves to be married to foreign nationals without consent.<\/p>\n\n\n\n This reflects corruption within the Department of Home Affairs, which needs to be addressed.<\/p>\n\n\n\n Other feedback has been for the bill to address issues around lobola, as well as other traditional customs which are seen as outdated and akin to forced marriage.<\/p>\n","protected":false},"excerpt":{"rendered":" Legal experts have warned couples that their prenups may no longer be the absolute final say in matters of divorce or death.<\/p>\n","protected":false},"author":10,"featured_media":767339,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23],"tags":[10761,10759],"class_list":["post-832706","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-government","tag-divorce","tag-marriage"],"_links":{"self":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts\/832706","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/comments?post=832706"}],"version-history":[{"count":4,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts\/832706\/revisions"}],"predecessor-version":[{"id":832722,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts\/832706\/revisions\/832722"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/media\/767339"}],"wp:attachment":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/media?parent=832706"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/categories?post=832706"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/tags?post=832706"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}Marriage changes are also coming<\/h2>\n\n\n\n
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