It often happens after a divorce that a man walks away with all the assets while the woman is left with nothing because she did not work.
South Africa’s family law is set to change significantly, with proposed changes that could affect how your property and other assets are divided in the event of divorce or death, even if you have an antenuptial agreement.
Grant Smee, CEO of Only Realty Property Group, says this is one of the most substantial adjustments in matrimonial property law in some time. “The goal is to promote fairer outcomes, particularly for spouses who made meaningful non-financial contributions to the marriage.”
According to Statistics SA, 130 806 civil marriages were registered in 2023 and while the figure is declining, Smee says marriage remains common in South Africa with significant legal implications for property ownership.
Justice Minister Mmamoloko Kubayi plans to table the General Laws (Family Matters) Amendment Bill in Parliament this year.
Smee says this Bill follows the 2023 Constitutional Court ruling that called for greater equity in divorce and estate matters. “The aim of the amendment is to protect spouses who could be left financially vulnerable after death or divorce by granting courts broader discretion in terms of fair asset redistribution.”
ALSO READ: This is what a divorce will do to your pension fund
Spouse with no assets in a divorce
The proposed amendments will affect the Divorce Act, Matrimonial Property Act and Mediation in Certain Divorce Matters Act, with the most notable proposed reforms including:
- Pre-1984 marriages, before the accrual system came into effect: Courts may now redistribute assets upon death or divorce.
- Post-1984 marriages without accrual: Even with an antenuptial contract excluding accrual, courts may intervene to redistribute assets if deemed just.
“This departs from the current norm, where a spouse typically walks away only with what is legally theirs, regardless of their broader contributions to the marriage. Couples who are married or planning to marry should take note of how these legal updates could affect property ownership and estate planning.”
What does it mean for property owners?
Under this amendment, courts will consider non-financial contributions, such as homemaking, raising children or supporting a spouse’s career or business when it comes time to divide assets, Smee says.
“Interestingly, this is not about defaulting to a 50/50 split but about assessing whether one spouse enabled the other to grow wealth or acquire property before deciding what a fair outcome looks like.”
Smee says the reforms mean that spouses in no-accrual marriages will be able to apply to the divorce court for a redistribution of assets. “The court can then decide to transfer a portion of the spouse’s assets to the applicant if it finds she or he contributed towards the increase of the spouse’s estate directly or indirectly.”
ALSO READ: Before the Lobola negotiations this weekend, discuss an ante nuptial contract with your partner
Asset distribution for divorced couples will be more fair
Factors that will determine asset distribution include how long you were married, the couple’s arrangements and the extent of the applicant’s contribution. Based on this, assets that may be subject to redistribution include:
- Primary or investment properties;
- Real estate-linked business interests;
- Property within a deceased spouse’s estate.
Under the current law, surviving spouses in non-accrual marriages often have no claim to property unless specified in a will. The proposed changes would allow for court-ordered redistribution from the deceased’s estate, offering greater financial protection for the surviving spouse.
“This aims to prevent situations where an individual is left with nothing when a spouse dies, despite years of matrimonial support,” Smee says.
ALSO READ: Can I get a percentage of my husband’s preservation fund in our divorce settlement?
What married couples can do – even if not getting divorced
For married or engaged couples, especially those with shared property or long-term investments, Smee recommends seeking legal advice regarding the upcoming adjustments to marital law.
These are his top tips:
- Review or update your antenuptial contract: Antenuptial contracts remain valid, but courts may override them if they result in an unfair outcome. “Here, we strongly suggest drafting contracts with contingency clauses to account for future contributions and asset division scenarios and it is strongly advised that you work with a legal team to make these adjustments.”
- Explore postnuptial adjustments: Married couples can apply for a change in their matrimonial property regime under Section 21 of the Matrimonial Property Act. “This helps to align existing agreements to the new legal framework, particularly when it comes to property investments.”
- Consider detailed contract planning: “If you are getting married and there is significant property assets involved, more consideration must be applied to ensure an equitable distribution.” He suggests couples consider:
- Clearly defining asset exclusions
- Assessing whether the chosen regime still suits their needs
- Ensuring estate plans and wills reflect the potential for court-ordered redistribution.
- Making provision for your dependents to avoid unintended asset shifts.
Smee believes these changes reflect a more modern understanding of marriage dynamics.
“It is important to remember that contributions are not always financial. The law takes cognisance of the reality that sacrifices, including non-financial sacrifices, made for the household deserve recognition. These reforms aim to create a more balanced approach to property and asset distribution.”
