Divorce is not only the end of a marriage. It can also involve difficult questions about property, finances, contributions, maintenance, children and future security.
In South Africa, one of the most important family law developments relates to asset redistribution in certain marriages out of community of property. This topic has received renewed attention because of the General (Family) Laws Amendment Bill [B20-2025], which is currently before Parliament. The Bill seeks to amend several family law statutes, including the Divorce Act, the Matrimonial Property Act and the Mediation in Certain Divorce Matters Act.
For spouses, the key question is simple: what happens when one spouse believes the strict terms of the marriage property system would lead to an unfair result?
This article explains the issue in plain language.
Understanding Matrimonial Property Systems
Before looking at the proposed changes, it helps to understand the basic marriage property systems in South Africa.
When people get married, their property system affects how assets and debts are dealt with during the marriage and when the marriage ends.
The main systems are:
Marriage in community of property
The spouses generally share one joint estate. Assets and debts form part of that joint estate, unless the law provides otherwise.
Marriage out of community of property with accrual
Each spouse keeps a separate estate during the marriage, but the growth of the estates may be shared when the marriage ends.
Marriage out of community of property without accrual
Each spouse generally keeps a separate estate, and there is usually no automatic sharing of growth when the marriage ends.
The third category is where many of the current legal discussions arise.
What Is Asset Redistribution?
Asset redistribution is when a court orders that assets, or a portion of assets, be transferred from one spouse to another when the marriage ends.
This does not mean that every spouse automatically gets a share of the other spouse’s estate. It also does not mean that antenuptial contracts no longer matter.
A redistribution claim is usually based on fairness and contribution. The court considers whether one spouse contributed directly or indirectly to the maintenance or growth of the other spouse’s estate, and whether it would be just and equitable to make an order.
Examples of indirect contribution may include raising children, managing the home, supporting the other spouse’s career or helping to preserve the family’s financial position.
Why Has the Law Been Under Review?
For many years, section 7(3) of the Divorce Act allowed certain spouses married out of community of property without accrual to claim redistribution of assets at divorce.
However, the remedy was limited. It did not apply equally to all spouses in similar marriages.
The Constitutional Court dealt with this issue in EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others [2023] ZACC 32. The Court confirmed constitutional invalidity in relation to section 7(3) of the Divorce Act because of the way the redistribution remedy was limited. The judgment dealt with both marriages ending by divorce and marriages ending by death.
The Constitutional Court suspended the declaration of invalidity for 24 months to allow Parliament to correct the position. During that period, interim reading-in provisions were put in place to protect affected parties.
What Does the General Family Laws Amendment Bill Aim to Do?
The General (Family) Laws Amendment Bill is intended to bring the relevant legislation in line with the Constitutional Court’s judgment.
According to Parliament’s Bill page, the Bill seeks to amend the Divorce Act to provide for the transfer of assets by a court granting a decree of divorce in respect of a marriage out of community of property, regardless of when the marriage was entered into.
The Bill also seeks to amend the Matrimonial Property Act to deal with distribution of matrimonial property where a marriage out of community of property is dissolved by death.
This is important because the law is not only concerned with divorce. It also considers what may happen when a marriage ends because one spouse passes away.
Does This Mean Antenuptial Contracts Are No Longer Important?
No. Antenuptial contracts remain important.
An antenuptial contract records the matrimonial property system chosen by the parties before marriage. It can affect assets, debts, accrual, estate planning and future financial responsibilities.
The proposed changes do not mean that every antenuptial contract can simply be ignored. They also do not mean that every spouse will automatically receive a redistribution order.
Instead, the issue is whether a court should have a wider discretion to make a redistribution order where the facts justify it.
This means spouses should not assume that their antenuptial contract has no value. They should also not assume that the wording of the contract will always be the only factor considered if a serious dispute arises.
Why This Matters in Divorce Proceedings
Divorce negotiations often involve property, debt, pension interests, maintenance and settlement agreements. Where spouses are married out of community of property without accrual, one spouse may believe that the strict application of the contract does not reflect the reality of the marriage.
For example, one spouse may have stayed home to raise children while the other built a business or acquired assets. Another spouse may have worked in a family business without formal ownership. In other situations, one spouse may have made sacrifices that allowed the other spouse’s estate to grow.
These are the kinds of facts that may become important when considering whether redistribution should be raised.
Each divorce must still be assessed on its own facts.
Why This Also Matters for Estate Planning
The proposed changes are also relevant for estate planning because the Bill addresses marriages out of community of property that end by death.
This can affect surviving spouses, deceased estates, executors, beneficiaries and families where there may be a dispute about whether one spouse contributed to the growth or preservation of the other spouse’s estate.
It is one reason why wills, estate plans and matrimonial property arrangements should be reviewed together. A person’s will may say one thing, but the matrimonial property position and possible claims against the estate may still need legal consideration.
Couples should not treat marriage contracts, wills and estate planning as separate issues. They often work together.
What Should Married Couples Do Now?
Married couples should take time to understand their matrimonial property system.
This is especially important if they are married out of community of property without accrual. Couples should know what their antenuptial contract says and what it may mean if the marriage ends by divorce or death.
It may be useful to review:
The antenuptial contract
The current ownership of assets
Business interests
Property ownership
Debts and suretyship obligations
Pension interests
Existing wills
Trust structures
Estate planning documents
Financial contributions during the marriage
This does not mean that every couple must change their arrangements. It means they should understand them.
What Should Divorcing Spouses Consider?
A spouse who is considering divorce should get legal advice before signing any settlement agreement.
A divorce settlement can have long-term financial consequences. Once signed and made an order of court, it may be difficult to change.
Before entering into settlement discussions, it is important to understand:
Which matrimonial property system applies
What the antenuptial contract says
What assets and debts exist
Whether pension interests are involved
Whether maintenance may be relevant
Whether children’s arrangements must be addressed
Whether a redistribution claim may need to be considered
What documents and evidence may be needed
A fair divorce process depends on proper information. Without documents, advice and a clear understanding of the legal position, a spouse may agree to terms without understanding the full effect.
What Evidence May Be Important?
Where a redistribution claim is considered, evidence can be very important.
Useful evidence may include:
Financial records
Proof of asset ownership
Business records
Bank statements
Property documents
Employment history
Records of contributions to household expenses
Records showing involvement in a business
Correspondence between spouses
Information about children and caregiving responsibilities
Documents showing debts, liabilities and obligations
The court does not decide these matters based only on emotion or opinion. It must consider facts, documents, contributions and fairness.
That is why early legal guidance can make a meaningful difference.
Does the Bill Already Change Every Divorce?
The Bill is part of the legislative process. Parliament’s records show that the Bill remains before Parliament, and PMG records show committee activity continuing into 2026, including a Department response to public submissions on 2 June 2026.
This means spouses should be careful not to rely on social media summaries or oversimplified advice. The exact legal position can depend on the current status of the law, the court orders already in place, the facts of the marriage and the timing of the matter.
Anyone affected should obtain legal advice based on their specific circumstances.
Common Misunderstandings
“If we are married out of community of property, nothing can ever be claimed.”
This is not always correct. The law around redistribution has developed, and the facts of the marriage may matter.
“An antenuptial contract no longer matters.”
This is also not correct. Antenuptial contracts remain important and should be properly drafted, understood and preserved.
“Redistribution is automatic.”
It is not automatic. A party must still raise the issue and place relevant facts and evidence before the court.
“This only matters during divorce.”
It may also matter when a marriage ends by death, especially where estate planning and possible claims are involved.
Why Legal Advice Matters
Family law is personal, but it is also technical.
A person going through divorce may be dealing with emotional stress while also being expected to make major legal and financial decisions. This is why proper advice is important before signing documents, agreeing to settlement terms or assuming what the law allows.
Legal advice can help you understand:
Your matrimonial property system
Your rights and obligations
The effect of your antenuptial contract
Whether redistribution may be relevant
What evidence may be required
How divorce settlement terms should be recorded
How your estate planning may be affected
The goal is not to create conflict. The goal is to make informed decisions.
Final Thoughts
The legal discussion around divorce and asset redistribution is one of the most important family law developments in South Africa.
The General (Family) Laws Amendment Bill reflects an attempt to align legislation with constitutional principles of fairness and equality. For spouses, the practical message is that marriage contracts, divorce settlements and estate planning should be taken seriously.
If you are married, planning to marry, considering divorce or reviewing your estate plan, it is worth understanding how your matrimonial property system affects you.
The earlier you get advice, the better prepared you will be.
Need Assistance With Divorce, Family Law or Matrimonial Property Guidance?
Wessels & Smith Inc assists clients with divorce matters, family law, antenuptial contracts, postnuptial arrangements, wills, deceased estates and related legal issues.
For professional legal guidance, contact Wessels & Smith Inc.
Tel: 057 391 9800
Email: info@wessmith.co.za
Website: wessmith.co.za
