South Africa’s government is preparing to overhaul the country’s marriage and divorce framework—sparking warnings from legal and property experts that couples should urgently review their marital contracts.
Justice Minister Mmamoloko Kubayi is expected to introduce the General Laws Amendment Bill, 2025 to Parliament. While presented as reforms to divorce law, the proposals apply to all union dissolutions, including death.
The legislation aims to bring greater fairness to marriages out of community of property without accrual, where non-financial contributions—such as homemaking or childrearing—often leave spouses empty-handed after separation.
The Two Big Caveats
Legal experts say the new rules will carry significant implications:
- No retroactive relief – Couples already divorced will not benefit.
- Court powers over prenups – Although antenuptial agreements remain valid, the law could allow courts to override them in cases of inequity, ordering redistribution of assets despite signed contracts.
In practice, this means couples who agreed to complete separation of property could still face redistribution orders if a court believes one spouse would be left unfairly disadvantaged.
Why Couples Should Take Notice
Property and financial specialists warn that the proposed changes make it essential for couples to revisit their agreements. According to Renier Kriek, Managing Director at Sentinel Homes, this is particularly urgent for those with homes, investments, or business assets.
“Couples need to consider the implications of what happens to these assets before tying the knot. If they’ve already done so, now is as good a time as any to review their arrangements,” Kriek said.
Marriage Options in South Africa
South African law offers three broad models of marriage contracts, each with unique consequences for property ownership:
1. In Community of Property (default)
If no antenuptial contract is signed, couples are automatically married in community of property. This means:
- All assets before and after marriage are jointly owned.
- Assets can be attached to pay off a spouse’s debts.
- Buying or selling property requires mutual consent.
- At divorce, assets are split equally; on death, inheritance follows the deceased’s will.
While it ensures equality, Kriek warns: “It’s impractical to have the parties bound at the waist as neither can act commercially without the other’s consent. It’s poor risk management because all assets are exposed to either party’s actions.”
2. Out of Community of Property Without Accrual (Cold Exclusion)
Here, all assets remain separate. Each spouse retains what they brought into and acquired during the marriage. Benefits include:
- Complete financial independence.
- Freedom to buy, sell, or engage in business without spousal consent.
- Assets are shielded from a spouse’s creditors.
The drawback: financially inactive spouses risk leaving the marriage with nothing. Maintenance claims may still apply.
3. Out of Community of Property With Accrual
This hybrid model balances independence with fairness. Assets acquired before and during marriage remain separate, but at divorce or death, spouses share equally in the growth of their estates.
Kriek notes: “It ensures both come away equal, and allows for one spouse to take time off to rear the children or support the other’s studies. However, it could still mean losing property you owned separately if it must be sold to cover the accrual.”
What About Unmarried Couples?
Even couples not formally married face risks. Contrary to popular belief, South Africa does not automatically recognise “common-law marriages.” However, courts can grant claims to life partners in certain circumstances.
Kriek advises that unmarried couples who share assets should draw up a cohabitation or partnership agreement to avoid messy legal disputes. Without it, lengthy court battles may ensue, often requiring proof of contributions to the relationship.
A Warning and a Call for Preparation
Experts agree that while the new laws aim to create fairness, they also introduce uncertainty. Couples—whether married, engaged, or cohabiting—are urged to review their contracts and property arrangements with professional advice.
As Kriek summed up: “If you are buying property with a life partner or other romantic interest, please be sure to have a partnership agreement drawn up by an attorney.”
With the proposed reforms on the horizon, now may be the best time for couples to protect both their love and their livelihoods.
