Introduction
South Africa’s divorce laws are set for their most significant reform in decades. Justice Minister Mmamoloko Kubayi has introduced the General (Family) Laws Amendment Bill, 2025, which proposes major changes to the Divorce Act of 1979, the Matrimonial Property Act of 1984, and the Mediation in Certain Divorce Matters Act of 1987. These reforms aim to modernise family law, address historical gaps, and bring fairness to situations where one spouse has contributed to a marriage in non-financial ways that were previously overlooked.
Why the Change?
This Bill is a direct response to a 2023 Constitutional Court ruling that declared the current legal position unfair. Under existing law, spouses married out of community of property without the accrual system, particularly those married after November 1984, have no automatic right to claim a share of assets at divorce or on the death of a spouse, no matter how much they contributed to the marriage in other ways.
For example, a spouse who managed the household, raised the children, or supported the other partner’s career could walk away with nothing. The Constitutional Court found this to be unjust and instructed Parliament to fix the law.
What Will Change Under the New Law?
If passed, the new legislation will empower courts to order a fair redistribution of assets in marriages out of community of property without accrual. This power will extend to marriages entered into both before and after 1984.
Courts will be able to look beyond the strict terms of an antenuptial contract if it results in unfairness. Non-financial contributions such as homemaking, child-rearing, and other supportive roles will be given greater legal recognition when dividing assets.
The Bill also strengthens the role of the Family Advocate and promotes mediation as a central part of divorce proceedings. The goal is to encourage fair, negotiated settlements and reduce the emotional and financial toll of lengthy court battles.
What This Means for Couples
One of the biggest shifts is that antenuptial contracts will no longer guarantee the exclusion of asset sharing. If a court believes the arrangement is unjust, it can override the contract in favour of a fairer division.
Couples should approach marital agreements with more nuance, considering both legal foresight and fairness. These changes also underscore the importance of documenting contributions, financial or otherwise, during the course of a marriage.
When Will This Happen?
Parliament has until 10 October 2025 to finalise the amendments in line with the Constitutional Court’s directive. In the meantime, interim court measures are already in place to ensure fairness is prioritised in divorce proceedings.
Conclusion
The proposed reforms mark a turning point in South African family law, shifting toward the recognition of marriage as a true partnership in which all contributions matter. For too long, the law has failed to protect spouses who gave their time, labour, and emotional energy without direct financial benefit. By closing this gap, the legal system is taking a decisive step toward equality and justice within marriage.
For anyone planning to marry, currently married, or considering divorce, this is a crucial moment to reassess legal arrangements and ensure they reflect not only your intentions but also the evolving principles of fairness in South African law.
Sincerely,
Sharne Gous
Founder, The Law Box