South Africa is preparing for significant changes in family law as Justice Minister Mmamoloko Kubayi prepares to introduce the General Laws Amendment Bill 2025 in Parliament. The bill addresses a long-standing issue affecting spouses married out of the community of property without accrual, who currently cannot claim a share of assets upon divorce or the death of a spouse.
Background of the Reform
The proposed legislation follows a 2023 Constitutional Court ruling, which declared the existing law unfair and discriminatory. The court recognized that many spouses contribute to a marriage through unpaid domestic work, such as raising children, managing the household, and supporting their partner’s career. Despite their role in building family wealth, these contributions were excluded from legal recognition in property division.
If passed, the bill will allow courts to redistribute assets more equitably, benefiting spouses who were previously disadvantaged under current laws.
Key Provisions of the General Laws Amendment Bill
The bill introduces targeted amendments to the Matrimonial Property Act to protect financially disadvantaged spouses in non-accrual marriages. Judges will have the authority to award between 10% and 50% of the estate, based on proven contributions, both financial and 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 |
These amendments apply to all legally recognized marriages, including Muslim, customary, and same-sex unions.
Why the Reform Is Necessary
Before 1984, courts could redistribute property fairly upon divorce if one spouse made substantial contributions. The 1984 reforms removed this right for post-1984 non-accrual marriages, leaving many homemakers financially vulnerable after divorce or the death of a spouse.
The Constitutional Court’s 2023 ruling emphasized the need to recognize the economic value of unpaid domestic labor and restore fairness in marital asset division. Rising divorce rates among long-term marriages and cases highlighting financial vulnerability have further reinforced the need for reform.
Impact on Divorce and Death Cases
Under the new bill, redistribution rights will be available in divorce trials but not in out-of-court settlements. In cases of death, a surviving spouse in a non-accrual marriage will be able to claim a share of the estate even without a will.
| Scenario | Effect Under the New Law |
|---|---|
| Divorce trial | Redistribution claim possible; court decides share |
| Out-of-court divorce settlement | No redistribution rights |
| Death without a will | Surviving spouse can claim redistribution |
This ensures financial protection for spouses both during marital breakdowns and in bereavement situations.
Safeguards and Limitations
The bill will not apply retroactively, meaning finalized divorces remain unaffected. Redistribution claims must be supported by evidence of contributions, whether financial, domestic, or both. Judges retain discretion to determine the fair share, considering the length of the marriage, type of contributions, and overall financial circumstances.
Legal experts have raised some concerns, including potential increases in contested divorces, the risk of spouses manipulating contributions to strengthen claims, and continued use of asset-protection measures by wealthier parties.
Inclusion Across All Marriages
The reform explicitly includes all marriages recognized under South African law. Both male and female spouses performing domestic duties will be equally protected, reflecting modern family dynamics where contributions beyond income are legally recognized.
Potential Legal and Social Implications
The bill is expected to restore fairness last seen before 1984 and provide judges with flexibility to address inequality in divorce and inheritance cases. However, legal practitioners anticipate:
- A possible increase in litigation as couples may prefer court rulings over private settlements
- Continued disputes over hidden assets and use of trusts
- Potential future amendments to close remaining loopholes
If passed, the General Laws Amendment Bill 2025 will significantly reshape divorce settlements in South Africa, ensuring that contributions previously overlooked are given legal recognition and financial protection.