Big Changes Ahead: Courts May Override Antenuptial Contracts in Divorce Cases

South Africa’s laws around divorce and property are about to change – and the impact could be significant for couples who are married out of community of property, especially without the accrual system.

If you’re getting divorced, considering marriage, reviewing your antenuptial contract (ANC), or finalising a spouse’s estate, you need to understand how these changes could affect your financial future.

What’s Changing?

The Department of Justice has announced the General Laws (Family Matters) Amendment Bill, which will soon be tabled in Parliament. This bill stems from a 2023 Constitutional Court ruling that called out the unfair treatment of spouses who walk away from a marriage – often after years of contribution – with nothing.

The key issue? In many out-of-community-of-property marriages (especially those without accrual), one spouse may have acquired all the assets, while the other contributed in non-financial ways – like raising children or managing the home – but has no legal claim to anything upon divorce or death.

This new law aims to fix that.

What Will the Law Allow?

The proposed bill gives courts the power to redistribute assets at divorce OR upon death in cases where couples:

• Married before 1984, when the accrual system didn’t exist; or

• Signed antenuptial contracts after 1984 that exclude accrual.

  
  

In short, if the court finds that one spouse made significant contributions to the marriage – financial or not – it can order a fair distribution of assets, even if there was an ANC in place.

Key Takeaways

• Antenuptial contracts won’t be absolute anymore. If a judge finds the outcome of enforcing the contract would be grossly unfair, the court can intervene.

• Non-financial contributions will count. Raising a family, supporting a business, or maintaining a household can all be taken into account.

• Applies in cases of death too. A surviving spouse in a non-accrual marriage could claim a fair share of the deceased estate.

• Customary, religious, and same-sex marriages are included. Everyone now has access to fair divorce proceedings, maintenance, and asset division – no matter how they were married.

  
  

Real-Life Example

Let’s say a couple got married out of community of property without accrual. One spouse built a successful business, while the other gave up their career to raise the children and manage the household.

Under current rules, the stay-at-home spouse would walk away with nothing – unless they claimed spousal maintenance.

Under the new law, however, that spouse could apply to the court for a just and equitable share of the assets – not necessarily 50%, but something fair based on their contribution.

Will This Affect All Antenuptial Contracts?

No. Couples can still sign ANCs and exclude accrual. But this law introduces a built-in “fairness clause”. If enforcing an ANC would lead to a seriously one-sided outcome, a court can intervene.

It’s not about taking away your freedom to contract – it’s about protecting spouses from being left destitute when they contributed meaningfully to the marriage.

What About Religious and Customary Marriages?

This legislation also expands protection to all forms of marriage:

• Muslim marriages are now fully recognized under South African law (as of May 2024). Courts can now issue divorce orders, award maintenance, and divide assets fairly.

• Customary marriages have been recognized since 1998. All such marriages are now, by default, in community of property – unless a different arrangement is agreed to beforehand.

• Same-sex marriages have had full legal recognition since 2006, and they are treated equally under these new divorce reforms.

No matter how you were married – civil, religious, customary, or same-sex – you’ll have access to the same legal protections.