South Africa’s Justice Minister, Mmamoloko Kubayi, is set to introduce the General (Family) Laws Amendment Bill, 2025, to Parliament. This legislation aims to amend several key laws governing divorce and matrimonial property, following a landmark Constitutional Court ruling in 2023. The proposed changes are designed to ensure fairer treatment for spouses married out of community of property without accrual, particularly when these marriages end in divorce or death.
The General (Family) Laws Amendment Bill seeks to amend the Divorce Act of 1979, the Matrimonial Property Act of 1984, and the Mediation in Certain Divorce Matters Act of 1987. The amendments will provide for the transfer of assets by a court granting a decree of divorce regarding a marriage out of community of property for those entered into before the commencement of the Matrimonial Property Act of 1984. Additionally, the bill aims to provide for the redistribution of matrimonial property in a marriage out of community of property upon the dissolution of the marriage by death. The Mediation in Certain Divorce Matters Act will also be amended to provide for the functions of the Office of the Family Advocate and other connected matters.
The proposed amendments stem from a Constitutional Court ruling in October 2023, which found certain parts of the Divorce Act to be unconstitutional and invalid. Specifically, the court ruled that the Divorce Act did not allow for the redistribution of assets for spouses married out of community of property without accrual after 1 November 1984, nor for marriages ending in death before or after the 1984 change. This ruling aimed to make it fairer for certain spouses when these marriages end.
Under the current law, when married out of community of property, the estates of spouses are kept separate, and neither spouse has a claim against the other spouse’s estate, even if they contribute to the maintenance or growth of the other’s estate. The Matrimonial Property Act of 1984 introduced the concept of “accrual,” allowing spouses who are married out of community of property to share in the growth of each other’s estates while still maintaining their separate estates. Upon divorce or death, the spouse with the smaller accrual or no accrual has a claim against the spouse with the bigger accrual. However, marriages before 1984 did not have the option of accrual and would have to apply to a divorce court for a redistribution order.
The Constitutional Court found this to be invalid, as the Divorce Act did not allow this for spouses who were married out of community of property without accrual after 1 November 1984, nor for marriages ending in death before or after the 1984 change. The expected amendments aim to benefit spouses who find themselves in financially vulnerable positions when their marriages out of community of property without accrual end.
If the new bill passes through Parliament and is assented to, it would mark another significant change to divorce laws following President Cyril Ramaphosa signing the Divorce Amendment Bill last year. The Divorce Amendment Bill brought significant changes to Muslim divorces in the country, following a lengthy court battle. In the Women’s Legal Centre Trust v President of the Republic of South Africa and Others case, the Constitutional Court ruled that the act was unconstitutional as it excluded Muslim marriages. The non-recognition of Muslim marriages in civil law meant that a person, particularly a woman, who is married in terms of Islamic law had no right to seek a divorce from a court. The Divorce Amendment Bill thus introduced the following changes:
To insert a definition of a Muslim marriage,
To provide for the protection and to safeguard the interests of dependent and minor children of a Muslim marriage,
To provide for the redistribution of assets on the dissolution of a Muslim marriage,
To provide for the forfeiture of the patrimonial benefits of a Muslim marriage.
The amended legislation addresses shortcomings in the Divorce Act of 1979, which differentiated between people married in terms of the Marriage Act and people married according to Muslim rites, especially women.
As Minister Kubayi prepares to table the General (Family) Laws Amendment Bill, 2025, in Parliament, it remains to be seen how these proposed changes will impact the landscape of divorce and matrimonial property law in South Africa. Stakeholders, including legal professionals, advocacy groups, and the public, will be closely monitoring the progress of the bill and its potential implications for families across the country.
The introduction of the General (Family) Laws Amendment Bill, 2025, represents a significant step towards reforming South Africa’s divorce laws to ensure fairness and equity for all spouses, regardless of the nature of their matrimonial property regime. As the legislative process unfolds, it will be important to consider the views and concerns of all affected parties to ensure that the final legislation serves the best interests of South African families.
In conclusion, the proposed amendments to South Africa’s divorce laws, as outlined in the General (Family) Laws Amendment Bill, 2025, aim to address constitutional shortcomings identified by the Constitutional Court and to provide greater fairness and protection for spouses, particularly those married out of community of property without accrual. As the bill progresses through Parliament, it will be essential to evaluate its potential impact on families and to ensure that it aligns with the principles of justice and equality enshrined in the South African Constitution.
The proposed changes to South Africa’s divorce laws, particularly concerning marriages out of community of property without accrual, represent a significant shift towards greater fairness and equity in the distribution of assets upon divorce or death. By addressing the constitutional issues identified by the Constitutional Court, the General (Family) Laws Amendment Bill, 2025, seeks to ensure that all spouses have access to just and equitable remedies, regardless of the nature of their matrimonial property regime.
As the legislative process continues, it will be important for all stakeholders, including legal professionals, advocacy groups, and the public, to engage with the proposed changes and to contribute to the ongoing dialogue about family law reform in South Africa. Through collaborative efforts, it is hoped that the final legislation will effectively address the needs and concerns of all South African families, promoting fairness, justice, and equality for all.
The introduction of the General (Family) Laws Amendment Bill, 2025, marks a pivotal moment in South Africa’s journey towards a more inclusive and equitable legal system. By addressing the constitutional shortcomings identified by the Constitutional Court and proposing reforms to the Divorce Act, Matrimonial Property Act, and Mediation in Certain Divorce Matters Act, the bill seeks to create a legal framework that better reflects the diverse realities of South African families.
As the bill progresses through Parliament, it will be essential to monitor its development and to consider the perspectives of all affected parties to ensure that the final legislation serves the best interests of South African families and upholds the principles of justice and equality enshrined in the Constitution.
In summary, the proposed amendments to South Africa’s divorce laws, as outlined in the General (Family) Laws Amendment Bill, 2025, represent a significant step towards reforming the legal landscape to ensure fairness and equity for all spouses. By addressing the constitutional issues identified by the Constitutional Court and proposing changes to key pieces of legislation, the bill aims to create a more just and inclusive legal system that better serves the needs of South African families.
The introduction of the General (Family) Laws Amendment Bill, 2025, signals a commitment to addressing the constitutional shortcomings identified by the Constitutional Court and to creating a legal framework that promotes fairness, justice, and equality for all South African families.
As the legislative process unfolds, it will be important to consider the views and concerns of all affected parties to ensure that the final legislation effectively addresses the needs and interests of all South African families, promoting a more equitable and inclusive legal system.
The proposed amendments to South Africa’s divorce laws, particularly concerning marriages out of community of property without accrual, represent a significant shift towards greater fairness and equity in the distribution of assets upon divorce or death. By addressing the constitutional issues identified by the Constitutional Court, the General (Family) Laws Amendment Bill, 2025, seeks to ensure that all spouses have access to just and equitable remedies, regardless of the nature of their matrimonial property regime.
As the legislative process continues, it will be important for all stakeholders, including legal professionals, advocacy groups, and the public, to engage with the proposed changes and to contribute to the ongoing dialogue about family law reform in South Africa. Through collaborative efforts, it is hoped that the final legislation will effectively address the needs and concerns of all South African families, promoting fairness, justice, and equality for all.
The introduction of the General (Family) Laws Amendment Bill, 2025, marks a pivotal moment in South Africa’s journey towards a more inclusive and equitable legal system. By addressing the constitutional shortcomings identified by the Constitutional Court and proposing reforms to the Divorce Act, Matrimonial Property Act, and Mediation in Certain Divorce Matters Act, the bill seeks to create a legal framework that better reflects the diverse realities of South African families.
As the bill progresses through Parliament, it will be essential to monitor its development and to consider the perspectives of all affected parties to ensure that the final legislation serves the best interests of South African families and upholds the principles of justice and equality enshrined in the Constitution.
In summary, the proposed amendments to South Africa’s divorce laws, as outlined in the General (Family) Laws Amendment Bill, 2025, represent a significant step towards reforming the legal landscape to ensure fairness and equity.
