South Africa is preparing to implement major reforms in family law as Justice Minister Mmamoloko Kubayi introduces the General Laws Amendment Bill 2025 to Parliament. This legislation aims to address long-standing inequities in divorce settlements, particularly for spouses married out of the community of property without accrual. Under the current system, these spouses have limited or no rights to a share of marital assets upon divorce or the death of a partner.
The reform follows a 2023 Constitutional Court ruling that found the existing laws discriminatory, especially against spouses who contribute to the marriage through unpaid domestic work, such as raising children, managing the household, and supporting their partner’s career.
Provisions of the General Laws Amendment Bill
The bill proposes changes to the Matrimonial Property Act to allow financially disadvantaged spouses in non-accrual marriages to make redistribution claims. Courts will have the authority to allocate between 10% and 50% of the estate based on contributions, whether financial or non-financial.
| Current Law | Proposed Change |
|---|---|
| Redistribution rights only for marriages before 1 Nov 1984 | Extended to all post-1984 non-accrual marriages |
| No right to claim a share of assets in divorce | Redistribution claim possible in divorce trials |
| No right to claim from a deceased spouse’s estate | Surviving spouse can claim redistribution |
| Limited court discretion | Judges granted full authority to determine asset share |
The amendments apply to all legally recognized marriages, including Muslim, same-sex, and customary marriages.
Why the Reform Was Needed
Prior to the 1984 Matrimonial Property Act, courts had the authority to redistribute property fairly upon divorce if one spouse made significant contributions to the marriage. The 1984 law removed these rights for post-1984 non-accrual marriages, leaving many homemakers financially vulnerable.
The Constitutional Court’s 2023 ruling highlighted that excluding redistribution rights in these marriages violated the constitutional right to equality and failed to acknowledge the economic value of unpaid domestic labor. Rising divorce rates among older couples and cases of financial hardship among non-earning spouses further underscored the need for reform.
Impact on Divorce and Death Cases
One of the bill’s key features is its application to both divorce and death cases.
- In divorce trials, redistribution claims will be available if the case goes to court. Spouses settling privately will not have access to redistribution rights.
- In cases of death, a surviving spouse in a non-accrual marriage can claim a share of the estate even if no will exists.
| Scenario | Effect Under the New Law |
|---|---|
| Divorce trial | Redistribution claim possible; court decides share |
| Out-of-court divorce settlement | No redistribution rights apply |
| Death without a will | Surviving spouse can claim redistribution |
Safeguards and Limitations
The bill is not retrospective, meaning finalized divorces remain unaffected. Redistribution claims must be supported by evidence of contributions, and courts will exercise discretion in awarding a fair share, taking into account the length of the marriage, nature of contributions, and overall financial circumstances.
Concerns include a potential rise in contested divorces, some spouses attempting to strengthen asset claims, and continued use of trusts or prenuptial agreements to protect assets.
Inclusion Across All Marriage Types
The reform covers all marriages recognized under South African law, including religious, civil, and same-sex unions. It ensures that both male and female stay-at-home spouses are protected, acknowledging the growing diversity of household roles and contributions beyond income generation.
Potential Legal and Social Implications
Legal experts predict that the bill will restore fairness last seen before 1984, giving judges flexibility to address economic inequality in divorce and death cases. However, the following are expected:
- A rise in litigation as couples may prefer court rulings over private settlements
- Legal disputes over hidden assets and asset protection measures
- Potential future amendments to close remaining loopholes
If passed, the General Laws Amendment Bill 2025 will redefine divorce settlements in South Africa, providing long-overdue protection to spouses whose contributions have historically been overlooked. While implementation challenges remain, the reform represents a significant step toward economic equality in marriage.
