Authored By: Sizwe Lugalo
Cape Peninsula of University of Technology
Abstract
This Article will look at how South African’s divorce law has changed after the 2023 Constitutional court case of EB v ER NO & Others; KG v Minister of Home Affairs & Others, 2023 ZACC32 (S.Afr). In that case the court ruled that part of Section 7 (3) of the Divorce Act 70 1979 (S. Afr) was unfair and unconstitutional[1]. The old law allowed one spouse often women, to leave a marriage with nothing, even after years of caring for the home and family, just because the couple had signed an antenuptial contract without accrual.
This Article explains the reasons behind the Court’s decision, looks at the legal and social effects of the new General Law (Family Matters) Amendment Bill, B15-2023 (S. Afr) and suggests ways to make marriage laws fairer. It also uses a simulated case study of three individuals A, B and C to show how the new law brings fairness and respect to both partners in a marriage.
Introduction
Marriage is meant to be a partnership of equals where both parties contribute to build a home and future together. However for many years in South Africa, the law did not always protect spouses fairly when a marriage ended. Under the Divorce Act 70 1979 (S. Afr), a person who was married out of community of property without accrual could walk away from a marriage with nothing, even if they spent years raising children and supporting their partners.
This issue became serious because many people, mostly women, signed antenuptial contracts without understanding that these contract excluded them from sharing in their partner’s property. The unfair results of this system led to many calls for reform In 2023, the Constitutional of the Republic of South Africa, 1996 (S. Afr.). The court found that part of Sections 7(3) of the Divorce Act was unconstitutional because it discriminated against certain spouces and violated their rights to equality(s. 9) and dignity (s. 10) under the Constitution of the Republic of South Africa, 1996 (S. Afr).[2]
In response, Parliament introduced the General Law (Family Matters) Amendment Bill, 2023 (S. Afr.) to make divorce law fairer and more inclusive.
This article aims to explain these legal changes, to show how they protect vulnerable spouces, and to highlight how South African law now promotes fairness, equality and dignity for both partners in a marriage.
Before the Change: How the Old Law Worked
Older marriages (before 1 Nov. 1984), Couples married out of community of property at a time when the accrual system did not yet exist. The Bill affirms that courts can order a transfer of assets in divorces of these marriages, which had been allowed under the Divorce Act’s redistribution mechanism for pre-1984 marriages. It closes gaps to ensure even if such a marriage ends by death (not just divorce), the surviving spouse can seek a just share of the estate.[3]
Marriages after 1984 with no accrual by contract, Couples who married out of community of property and explicitly excluded accrual in their antenuptial contract (an option available since the Matrimonial Property Act of 1984) will now fall under the court’s redistribution power. Under current law, these spouses have no automatic claim against each other’s estate upon divorce or death, regardless of contributions. The Bill proposes that judges may order a transfer of assets if it is just and equitable, effectively overriding the strict separation in such cases to prevent unfair outcomes.
Overall, before the 2023 ruling, section 7(3) of the Divorce Act limited redistribution remedies to marriages out of community of property without accrual entered into before 1 Nov. 1984. Spouses married later under the same marital regime were excluded, leaving those who contributed non-financially to the household at a disadvantage. The law failed to recognise the economic value of domestic labour, childcare, and emotional support, leading to systemic inequality.
What the Court Said: The 2023 Constitutional Court Ruling
In EB v ER NO and Others; KG v Minister of Home Affairs and Others (2023) ZACC 32, the Constitutional Court found that section 7(3) violated section 9 of the Constitution (equality) and section 10 (human dignity). Justice Mhlantla stated: “It is unfair for a spouse to leave a marriage with nothing despite years of unpaid care and support.” The Court held that all spouses married out of community of property without accrual, irrespective of the date of marriage, should be eligible for redistribution based on their contributions.[4]
Why the Law Had to Change: Fairness, Equality, and Dignity
The primary motivation behind these legislative changes comes from an Oct. 2023 Constitutional Court ruling, which found that aspects of the current Divorce Act were unconstitutional and invalid. The judgment centred on the treatment of couples married out of community of property without accrual, a regime that currently leaves one party often the financially vulnerable spouse with no claim to the other’s estate in the event of divorce or death.
Under an out of community of property marriage, each spouse maintains a separate estate, with no automatic right to share in the other’s assets regardless of whether they contributed to household income, maintenance, or supported the growth of the other’s estate.
The Matrimonial Property Act, which came into effect in Nov. 1984, introduced the concept of accrual. This legal mechanism allows couples who marry out of community of property to include an accrual system by agreement, thereby entitling each to a share in the growth of the other’s estate while still maintaining separation of ownership.[5]
For couples married without accrual before 1984, courts were able to grant a redistribution order during divorce proceedings under limited conditions, thanks to earlier amendments to the Divorce Act. However, the Constitutional Court found that the current legislation fails to offer similar relief to couples married out of community of property without accrual after 1 Nov. 1984, or in cases where such marriages end due to death regardless of the date of death.[6]
The proposed legal reforms aim to correct this imbalance and offer better financial protection to spouses left economically disadvantaged by this outdated structure.
Real-Life Impact: The Story of A, B, C, D, E, and F
Consider six spouses illustrating the new law’s application:
- A and B were married out of community of property without accrual. A earned income while B managed the home and children. Under the old law, B would have left with nothing. Now, B can claim a fair share of assets.
- C, married under community of property, already shared assets equally; the change confirms fairness rather than altering outcomes.
- D and E were married without accrual; D worked part-time while E supported D’s business. Redistribution now recognises E’s contributions.
- F stayed home to care for elderly relatives while their spouse ran a successful career. The amendment allows F to access redistribution remedies for their support work.
How the New Bill Brings Change
With the introduction of the new bill, spouses who were married out of community of property without accrual, particularly in cases 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 change will help address long-standing inequalities where one spouse — often a homemaker or caregiver is left with little to no recourse after the breakdown of the marriage or the death of a financially dominant partner.
These updates to divorce law in South Africa will ensure that divorce lawyers and judges have clearer authority to award asset redistribution in cases where fairness demands it, even in the absence of accrual. The General Laws (Family Matters) Amendment Bill 2023 extends section 7(3) remedies to all marriages out of community of property without accrual, regardless of the date of marriage[7]. It ensures courts can assess both financial and non-financial contributions when redistributing assets. The Bill formalises fairness, equality, and dignity for spouses, and provides clarity for judicial interpretation.
Challenges and how it will affect antenuptial contract
While the amendment promotes fairness, challenges remain. Measuring non-financial contributions such as emotional labor or caregiving is complex. There may be increased litigation as more spouses seek redistribution. Courts will need practical guidelines to evaluate indirect contributions objectively.
Regarding the antenuptial contract couples will still be able to sign antenuptial contracts and choose to exclude community of property or accrual. That doesn’t change we’re not forcing everyone into sharing regimes. However, what does change is that an antenuptial contract will no longer be absolute in its effect upon divorce. If enforcing the contract strictly would result in a seriously unfair outcome for one spouse, the court can step in and override it to an extent. The idea is not to toss contracts out the window, but to prevent unjust situations. Think of it like this: you have a contract, but there’s now a statutory clause of fairness built into every contract by law. For example, a couple might have agreed to complete separation of property and that’s fine during the marriage – but at divorce, if one party is going to walk away a lot richer and the other much poorer (despite both contributing in different ways), the court can redistribute some assets so that the outcome isn’t unconscionable. In practice, many couples might not even need this – if both worked and kept things separate, each leaves with what’s theirs and it’s equitable[8]. The provision is really targeting those extreme cases of imbalance. It’s worth noting, too, that this is very similar to what’s already been the case for older contracts (pre-1984), now it will just apply across the board. For lawyers drafting antenuptial contracts going forward, they will likely inform clients that opting out of accrual does not mean opting out of all sharing a court can still intervene if justice demands. So, couples should only exclude accrual for good reason, and possibly even build into their contract how they would want contributions handled, to have some certainty. But yes, bottom line: a court can override the strict terms of an antenuptial contract when fairness dictates, under these new rules[9].
Future marriage planning
Couples planning to marry will need to weigh their choice of matrimonial property regime in light of these changes. Previously, an “out of community without accrual” antenuptial contract offered certainty that each party’s estate would remain untouched by the other. Now, future spouses should acknowledge that if they opt for no accrual, courts still have a safety valve to prevent hardship. For many, the accrual system (which shares growth in estates) might become a more attractive or straightforward choice – it provides for sharing in a transparent way and might reduce the need for litigation later[10]. Others who have good reason for a no-accrual contract (for instance, second marriages where each party wants to secure their estate for children from a prior marriage) can still do so, but should be advised to possibly include clauses anticipating contributions or even to waive the right to seek a redistribution (if the law will allow such a waiver – this might be a grey area to be tested). The key is that financial planning and antenuptial drafting must account for the new legal landscape. Attorneys should counsel clients on building provisions for fairness into their marriage contracts or at least making informed choices about accrual vs. no-accrual.
Suggestions / Way Forward
- Public awareness: Educate couples about antenuptial contracts and marital property regimes.
- Judicial training: Equip judges to evaluate non-financial contributions fairly.
- Legal aid support: Provide resources for spouses seeking redistribution.
- Policy monitoring: Parliament should assess outcomes and adapt the law as needed.
- Gender equality advocacy: Promote women’s economic empowerment within and after marriage.
Conclusion
The 2023 Constitutional Court ruling and the General Laws (Family Matters) Amendment Bill 2023 represent a significant advancement in South African family law. They recognise that spouses contribute in diverse ways, not just financially, and ensure redistribution remedies are applied fairly. By valuing all contributions, the law promotes equality, human dignity, and social justice within marriage and at divorce
Bibliography
Primary Sources
Constitution of the Republic of South Africa 1996.
Divorce Act 70 of 1979, §7(3) (S. Afr.).
EB v ER NO and Others; KG v Minister of Home Affairs and Others, (2023) ZACC 32 (S. Afr.).
General Laws (Family Matters) Amendment Bill, 2023, Bill No. 15 of 2023, §2 (Sept. 10, 2023) (S. Afr.).
Secondary Sources
Bonthuys E, ‘Gender Equality and the Law of Marriage in South Africa’ (2019) 35 S. Afr. J. Hum. Rts. 245.
Heaton J, South African Family Law (6th edn, Juta 2023).
South African Law Reform Commission, Review of Aspects of Matrimonial Property Law (Discussion Paper 156, 2023).
Preller B, ‘South Africa’s Divorce Revolution: How the 2023 Constitutional Court Ruling and General Laws (Family Matters) Amendment Bill 2025 Rewrote Asset Division Laws to Protect Vulnerable Spouses’ (FamilyLaws South Africa, 21 June 2025https://familylaws.co.za/south-africa-divorce-law-reforms-2025-constitutional-court-asset-redistribution/ Accessed 11 Oct. 2025
Burnett law, ‘Wat is the New Divorce law in South Africa?’ (Burnett Law, 12 Sept 2025 https://www.burnett-law.co.za/what-is-the-new-divorce-law-in-south-africa/ accessed13 Oct. 2025
Cor van Deventer, ‘New Changes to Divorce Law in South Africa’ (VDM Attorneys, 20 June 2025) https://www.vdm.law/articles/entryid/203/new-changes-to-divorce-law-in-south-africa accessed 13 Oct. 2025. Accessed 10 Oct. 2025
[1] Divorce Act 70 of 1979 s7(3) (SA).
[2] Constitution of the Republic of South Africa, 1996 (SA).
[3] Bertus Preller, South Africa’s Divorce Revolution: How the 2023 Constitutional Court Ruling and General Laws (Family Matters) Amendment Bill 2025 Rewrote Asset Division Laws to Protect Vulnerable Spouses (FamilyLaws South Africa, 21 June 2025) https://familylaws.co.za/south-africa-divorce-law-reforms-2025-constitutional-court-asset-redistribution/ accessed 11 Oct. 2025.
[4] EB V ER NO and Others; KG v Minister of Home Affairs and Others [2023] ZACC 32 (South Africa)
[5] Cor van Deventer, ‘New Changes to Divorce Law in South Africa’ (VDM Attorneys, 20 June 2025) https://www.vdm.law/articles/entryid/203/new-changes-to-divorce-law-in-south-africa accessed 13 Oct. 2025.
[6] Bertus Preller, South Africa’s Divorce Revolution: How the 2023 Constitutional Court Ruling and General Laws (Family Matters) Amendment Bill 2025 Rewrote Asset Division Laws to Protect Vulnerable Spouses (FamilyLaws South Africa, 21 June 2025) https://familylaws.co.za/south-africa-divorce-law-reforms-2025-constitutional-court-asset-redistribution/ accessed 11 Oct. 2025.
[7] General Laws (Family Matters) Amendment Bill, 2023, Bill No. 15 of 2023, §2 (Sept. 10, 2023) (S. Afr.).
[8] Burnett Law, ‘What Is the New Divorce Law in South Africa?’ (Burnett Law, 12 Sept. 2025) https://www.burnett-law.co.za/what-is-the-new-divorce-law-in-south-africa/ accessed 13 Oct. 2025.
[9] Heaton J, South African Family Law (6th edn, Juta 2023
[10] Bonthuys E, ‘Gender Equality and the Law of Marriage in South Africa’ (2019) 35 S. Afr. J. Hum. Rts. 245.
