Divorce Law Reforms: What they mean for your Property

• Courts may redistribute assets even with no-accrual antenuptial contracts.
• Non-financial contributions (caregiving, homemaking) could count toward property claims.
• Estate redistribution on death may protect vulnerable surviving spouses.

What’s changing and why it matters

South Africa’s family law is being updated. The General Laws (Family Matters) Amendment Bill, to be tabled in Parliament, proposes changes to the Divorce Act, Matrimonial Property Act, and Mediation in Certain Divorce Matters Act.

The aim is to give courts wider discretion to ensure fairer outcomes in divorce and death where one spouse may be left financially exposed even where an antenuptial contract excludes accrual.

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“This is one of the most substantial adjustments we’ve seen in matrimonial property law in some time,” says Grant Smee, CEO of Only Realty Property Group. “The goal is to promote fairer outcomes, particularly for spouses who’ve made meaningful non-financial contributions to the marriage.”

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With 130,806 civil marriages registered in 2023, property ownership and estate planning remain mainstream issues with real financial consequences.

Unpacking the proposed reforms

• Pre-1984 marriages (before accrual): Courts may order asset redistribution on divorce or death.
• Post-1984 no-accrual marriages: Even with a valid antenuptial excluding accrual, courts could intervene to redistribute assets if justice requires.
• Weight to non-financial contributions: Homemaking, childcare, and supporting a spouse’s career can be recognised in property outcomes.
• On death: Courts may redistribute from a deceased estate, offering protection to vulnerable surviving spouses.
• Not automatic 50/50: Outcomes are case-specific, duration of marriage, arrangements, and contributions all count.

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Smee notes: “This isn’t about defaulting to a 50/50 split; it’s about assessing whether one spouse enabled the other to grow wealth or acquire property before deciding what a fair outcome looks like.”

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What it means for property owners and investors

‍Assets that may be affected by court-ordered redistribution include:

• Primary residences and investment properties
• Real estate-linked business interests
• Property held in a deceased spouse’s estate

Expect closer scrutiny of how property was acquired and maintained, who enabled growth (directly or indirectly), and whether an antenuptial agreement produces unfair outcomes in the circumstances.

Marriage property regimes - Quick Guide

In community of property (default without ANC)

‍All assets and debts form a joint estate. You generally need spousal consent for transactions; at divorce, assets split equally.

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“I don’t know an attorney who would recommend this model,” says Renier Kriek, MD of Sentinel Homes. “It’s impractical…and poor risk management because all assets are exposed to either party’s actions.”

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Out of community without accrual (the “cold exclusion”)

‍Each spouse keeps what they own before and acquire during marriage; no sharing on dissolution. Ideal for entrepreneurs/investors seeking creditor protection and autonomy, but maintenance claims may still arise.

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“For entrepreneurs and investors, it protects their business portfolio while sparing their partners the financial risks they willingly take on,” adds Kriek.

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Out of community with accrual (default when not excluded)

Each spouse owns separately during marriage, but at the end the spouse with the smaller estate can claim half the difference (accrual) from the spouse with the larger estate.

“It ensures both come away more equal…and recognises time taken off for caregiving,” says Kriek. “But assets may be sold to fund an accrual payment.”

Managing the changes: Practical steps

1. Review (or draft) your antenuptial contract (ANC).
   • Keep it, but consider contingency clauses acknowledging non-financial contributions and fair division scenarios.
2. Consider a postnuptial change (Section 21, Matrimonial Property Act).
   • Couples can apply to change their regime to align with risk, investment and fairness goals.
3. Update estate plans and wills.
   • Reflect the possibility of court-ordered redistribution on death; revisit beneficiary designations and bequests.
4. Document contributions.
   • Keep records of property improvements, childcare, support of a spouse’s studies or business, and who paid what, when.
5. Agree upfront on co-ownership and exits.
   • For property purchased together (spouses or partners), draft co-ownership/partnership agreements covering exits, buy-outs and valuations.
6. Protect business continuity.
   • Segregate personal and business assets; keep clean corporate records, shareholder agreements and loan accounts.
7. Get legal advice early.
   • Complexities around accrual calculations, estate liquidity and creditor exposure warrant specialist counsel.

“Do the smart thing and get advice from your attorney,” Kriek stresses. “A contract may seem unromantic when wedding bells are ringing, but it protects you both in the long run.”

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Bottom line

The proposed reforms recalibrate fairness in divorce and death—especially where non-financial contributions enabled asset growth.

Property owners should review marital regimes, estate plans and documentation now to avoid disputes later and to preserve both wealth and dignity if the honeymoon ends.

This article provides general information and is not legal advice. Always consult a qualified attorney on your specific circumstances.

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