South Africa is on the brink of a major overhaul of its marriage and divorce framework. Justice Minister Mmamoloko Kubayi has tabled the General Laws Amendment Bill, 2025, which will significantly affect how property is divided when a marriage or partnership comes to an end, whether through divorce or death.
While the Bill is framed as a reform of divorce law, its impact extends to all unions, and it could reshape the financial security of many South Africans.
Key Changes on the Horizon
The most notable shift concerns couples married out of community of property without accrual. At present, spouses in these arrangements have no claim to each other’s estates, even after years of unpaid contributions such as childcare or running the household. Under the proposed law, courts will have the discretion to award a fair redistribution to prevent one spouse from walking away with nothing.
However, two critical caveats remain:
- No retroactive effect – couples already divorced will not benefit from these reforms.
- Court intervention in prenups – although antenuptial contracts will still stand, judges will gain statutory authority to override their terms if upholding them would result in serious unfairness.
This means that even if a contract explicitly excludes accrual, a court may still order redistribution of assets.
Why Couples Should Re-Evaluate Their Arrangements
Legal and financial advisors are urging couples, both those preparing to marry and those already married, to review their current contracts and estate planning. Property, particularly homes, investments, and business assets, should be carefully considered. Couples often overlook the long-term consequences of how property is structured at the start of a marriage. With these reforms on the way, it is essential to revisit antenuptial agreements and consider their implications.
Types of Marriage Property Systems in South Africa
1. In Community of Property
Without an antenuptial agreement, the law automatically defaults to this regime. All assets, whether acquired before or during the marriage, are shared equally. The downside is that each spouse’s debts also become joint liabilities. Selling, buying, or transferring property requires mutual consent, and divorce results in a 50/50 split.
2. Out of Community of Property Without Accrual (Cold Exclusion)
This model ensures complete financial independence. Each spouse retains what they acquire and is shielded from the other’s creditors. While this protects entrepreneurs and investors, it often disadvantages non-earning spouses, who may leave a marriage with no assets at all.
3. Out of Community of Property With Accrual
This system balances independence with fairness. Each spouse controls their own property during the marriage, but at the end, the growth of both estates is shared. It recognises the value of unpaid contributions, such as raising children or supporting a partner through studies, while avoiding the restrictions of full community of property.
What About Unmarried Couples?
A common misconception is that South Africa recognises “common-law marriages.” It does not. Cohabiting partners have no automatic legal rights, even after years together. Without a cohabitation agreement, one partner may walk away with assets or contributions unrecognised, leading to costly court disputes.
Experts advise that couples living together should put a legally binding agreement in place, especially if they own property jointly or share financial responsibilities.
Preparing for the Future
The upcoming legislative reforms mark a turning point for marriage and property rights in South Africa. They aim to make the system more equitable, but they also introduce uncertainty by allowing courts to intervene in contracts previously thought untouchable.
Couples planning to marry, or already married, should seek legal advice to ensure their contracts and estate planning reflect their intentions and protect both parties.