Upcoming (and implemented) Changes to Divorce Law(s) in South Africa
Marriage - the union between two people who choose to love one another, for better or worse until death do, they part.
Well, that’s the intention in any event.
But - while a 2024/25-specific rate is not yet available, official Stats SA data shows a trend of rising divorce rates, with 22,230 divorces finalised in 2023 – and it would seem that the societal attitude towards marriage has changed with many couples deciding to exit a troubled union rather than stay in an unhappy or difficult marriage.
And the result is that all too often one of the spouses, usually the less financially strong spouse, exits the marriage far worse off than when they entered the marriage. A consequence of the Matrimonial Property Act 88 of 1984 (the “Matrimonial Property Act”), which came into effect in November 1984. This Act introduced the concept of accrual. This legal mechanism allows couples who marry out of community of property (discussed in our previous article) to include an accrual system (done by agreement in an ante-nuptial agreement), thereby entitling each party to a share in the growth of the other party’s estate while still maintaining separation of ownership.
This is where we find ourselves. Within a melting pot of increased divorce rates, unfair legal outcomes and spouses left between a rock and a hard place. But the South African legislature, seeing a “gap” in the system has taken this seriously and has decided to do something about it.
Egged-on by findings of the Constitutional Court in 2023 — particularly in how financial entitlements are handled in divorces where spouses were married out of community of property without accrual – the South African legislature is preparing for a significant overhaul of its divorce law framework.
What Is Being Overhauled?
The General (Family) Laws Amendment Bill, 2025 (the “2025 Bill”), proposes changes to the following divorce related Acts –
1. The Divorce Act 70 of 1979 (the “Divorce Act”) – to provide for consequential amendments of certain sections, arising from the amendments to the Mediation in Certain Divorce Matters Act, 1987, and 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 it was entered into. This would affect both divorces and estates settled upon a spouse’s death.
2. The Matrimonial Property Act, to provide for the distribution of matrimonial property of a marriage out of community of property upon the dissolution of the marriage by death; and
3. Mediation in Certain Divorce Matters Act, 24 of 1987 (the “Mediation Act”), to provide for the functions of the Office of the Family Advocate, to provide for the amendment of the short title, and to provide for the amendment of the long title, and to provide for matters connected therewith.
With the introduction of the 2025 Bill, spouses who were married out of community of property without accrual, (especially in situations where they contributed indirectly to the estate’s growth), will now have the opportunity to claim a more equitable share during divorce or estate distribution proceedings.
This will significantly address long-standing inequalities where one spouse — usually the wife, mother, homemaker or caregiver — is left with little to no recourse after the breakdown of the marriage or the death of a financially dominant partner.
But while the proposed changes seek to bring fairness to the process, they come with two big caveats –
1. These changes won’t be applied retroactively – this means that those who are already divorced, will remain so and their situations will remain unchanged, and
2. The courts may have the power to overrule standing ante-nuptial agreements (“ANC”). While the new law will not invalidate an ANC, it does overlay a statutory power for courts to intervene, notwithstanding what the ANC sets out. In other words, even if spouses agreed to complete separation of property, a court can still order a redistribution of assets, if one spouse would otherwise face serious inequity.
This was spurred on by a Constitutional Court decision EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others (CCT 364/21; CCT 158/22) [2023] ZACC 32; 2024 (1) BCLR 16 (CC); 2024 (2) SA 1 (CC) (10 October 2023), that was handed down on the 10th of October 2023, that sought to benefit spouses (mainly wives), who found themselves in financially vulnerable positions when their marriages out of community of property without accrual ended in divorce or death. This included stay-at-home mothers, who take care of the family home or raise the children full time. Their non-financial contributions to the marriage, including unpaid labour in the home, are now valued as much as any financial contributions to the marriage.
Summary - the 2025 Bill will amend three key pieces of legislation: the Divorce Act of 1979, the Matrimonial Property Act of 1984, and the Mediation in Certain Divorce Matters Act of 1987. Most significantly, courts will gain new powers to redistribute assets fairly, ensuring that spouses who contributed to building wealth – whether through homemaking, childcare, or supporting a partner’s career – can claim their rightful share.
The Divorce Amendment Bill
Should Parliament adopt the 2025 Bill, it will dovetail quite nicely in with the Divorce Amendment Act 1 of 2024 (the “Divorce Amendment Act”) which was signed into law by President Cyril Ramaphosa in 2024.
The Divorce Amendment Act introduced fundamental reforms to the handling of Muslim divorces in South African civil law, and brought several critical changes to ensure that Muslim marriages are fully recognised, the changes include:
1. Inserting a legal definition of a Muslim marriage;
2. Providing statutory protection for minor and dependent children of Muslim marriages;
3. Enabling courts to grant redistribution of assets upon dissolution of a Muslim marriage;
4. Authorising courts to order forfeiture of patrimonial benefits where applicable.
These critical changes were also spurred on by a landmark case – the Women’s Legal Centre Trust v President of the Republic of South Africa and Others, where the Constitutional Court ruled that the existing Divorce Act was unconstitutional because it excluded Muslim marriages from legal recognition and remedy. Previously, couples married under Shariah law had no access to divorce through civil courts, and Muslim women, especially, were left without any enforceable rights to matrimonial property or maintenance following a divorce.
This legal gap caused severe hardship for many families and especially for women, who often faced financial ruin when their marriages dissolved under Sharia law with no entitlement to patrimonial benefits.
What All These Changes Mean
“A change is as good as a holiday” they say.
For the law, a change makes things as good as new and washes old mistakes clean.
With these changes both implemented and proposed, the divorce laws will be made more fair, more inclusive, and more equitable, where the needs and rights of both parties are considered and considered when going through – what is already a tough situation. And it’s about time too.
By following the strict definitions of legal regimes to the letter, unjust situations can arise, especially for spouses who have made meaningful contributions to a marriage without that (necessarily) being something that can be reflected on paper.
While these changes won’t affect those married in community of property, for those married out of community, especially without accrual, these changes will ensure a more level playing field and a fairer outcome going forward.
These changes though are more than just a legal update. They are a recognition that marriage is an economic partnership where contributions come in many forms. The changes will particularly benefit those in older marriages (pre-1984) and couples who specifically excluded the accrual system in their ANC’s, while also strengthening the role of Family Advocates in divorce mediation.
For thousands of South African families, these reforms promise to end an era where divorce could mean financial devastation for the economically weaker spouse, replacing it with a system that truly delivers justice and equality.
We hope that this has shed some light on the changes being made to the divorce law framework within South Africa.
We have taken the utmost care to ensure that the above information is correct having taken information directly from the Matrimonial Property Act 88 of 1984, the General (Family) Laws Amendment Bill, 2025, The Divorce Act 70 of 1979, the Mediation in Certain Divorce Matters Act, 24 of 1987 and the Divorce Amendment Act 1 of 2024, but we urge you to consult with a suitably qualified legal practitioner who will be able to answer any questions you may have on marital regimes and how they will affect you and your estate should you be headed down the aisle. In this regard, we would be more than happy to support you. Please feel free to contact us to see how we can best assist.
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(Sources used and to whom we give thanks – Businesstech here and here; the Conversation; Parliament of the Republic of South Africa, VDM Attorneys and Family Laws South Africa).
