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South Africans could soon see a major shift in how property and other assets are divided in the event of divorce or death, thanks to proposed reforms in family law. For homeowners and investors, these changes may have far-reaching financial consequences, especially for couples married outside of the accrual system.
Grant Smee, CEO of Only Realty Property Group, describes the reforms as a turning point:
“This is one of the most substantial adjustments we’ve seen in matrimonial property law in some time. The goal is to promote fairer outcomes, particularly for spouses who’ve made meaningful non-financial contributions to the marriage.”
Although the number of marriages in South Africa has been declining, Statistics South Africa recorded 130,806 civil marriages in 2023; marriage remains deeply tied to financial and property decisions.
From primary residences to investment properties and estate planning, how assets are structured in a marriage can determine financial stability in the long term.
Justice Minister Mmamoloko Kubayi is set to table the General Laws (Family Matters) Amendment Bill in Parliament this year. This follows a 2023 Constitutional Court ruling calling for greater fairness in how assets are distributed after divorce or death.
“The amendment aims to protect spouses who could be left financially vulnerable after death or divorce by granting courts broader discretion in terms of fair asset redistribution,” according to Smee.
At present, redistribution of assets is only available under very narrow circumstances. Specifically, the Divorce Act of 1979 allows a spouse to ask a court for redistribution of assets if they can show they made a direct or indirect contribution to the other spouse’s estate. However, this option was only open to couples married before 1984, when the accrual system was introduced.
Kaveer Guiness, Director of Kaveer Guiness Attorneys, clarifies this point:
“There is a misconception that the new Bill will automatically merge estates for couples married out of community of property without accrual. That is not the case. What the Bill does is extend the right to claim redistribution to all marriages, not just those concluded before 1984.”
In plain language: redistribution isn’t new, but previously it was limited to older marriages. If the Bill passes, any spouse married out of community of property without accrual could apply to court for a fair share, if they can prove they meaningfully contributed to the marriage.
Guiness explains:
“The redistribution of assets has always formed part of our law. The Family Bill simply removes the date restriction. But any person seeking redistribution would still need to meet the requirements set out in Section 5 of the Divorce Act, such as proving their direct or indirect contribution to the other spouse’s estate.”
This means not every divorce will result in redistribution, and courts will still weigh up evidence such as the duration of the marriage, the roles played by each spouse, and how contributions, financial or otherwise, enabled wealth creation.
For property owners, the proposed reforms could reshape how property is handled at the end of a marriage or on death. Assets that may now be subject to redistribution include:
Primary or secondary homes
Investment properties
Real estate-linked business interests
Property within a deceased spouse’s estate
Under current law, a surviving spouse in a no-accrual marriage often has no claim to property unless it is explicitly included in a will.
The new system would provide a mechanism for courts to grant access to property and estate assets, potentially preventing financial hardship.
Smee believes this correction is long overdue and "aims to prevent situations where an individual is left with nothing when a spouse dies, despite years of matrimonial support.”
Guiness agrees, stressing that the reform is about fairness:
“Many spouses, often women who dedicated years to their family’s well-being, were left without assets or income after divorce. This Bill ensures that those contributions are no longer disregarded,” he added.
For couples already married, or those planning to get married, financial planning just became more complex.
Smee offers some practical guidance:
Review or Update Antenuptial Contracts: Antenuptial agreements will remain valid, but courts may override them if they create unfair outcomes. Smee recommends including contingency clauses and seeking legal advice.
Consider Postnuptial Adjustments: Couples can apply to change their matrimonial property regime under Section 21 of the Matrimonial Property Act to better align with the new framework.
Plan with Greater Detail: Contracts should clearly define exclusions, align estate planning with potential redistributions, and consider dependents who could be affected.
Guiness adds a note of caution:
“Contracts are no longer bulletproof. Couples need to understand that redistribution claims will now be possible across the board, but they will not succeed unless the legal criteria are met. Planning ahead with professional advice is key.”
Ultimately, these changes reflect the evolving realities of modern relationships.
“It’s important to remember that contributions aren’t always financial. The law takes cognisance of the sacrifices made for the household, whether financial or not, and ensures they are fairly recognised. These reforms aim to create a more balanced approach to property and asset distribution,” Smee concluded.
For South Africans, that balance could mean greater protection for vulnerable spouses, but also a need for more sophisticated financial and legal planning in the years ahead.