Legal professionals in South Africa have issued a warning to couples planning to marry that prenuptial agreements might no longer hold the same legal authority they once did when new legislation is enacted. These upcoming changes could alter how prenups are interpreted, particularly during divorce proceedings or upon the death of a spouse. This signals a major shift in how marital rights are protected, especially for financially vulnerable partners who previously had no legal safety net.
Key Takeaways
- Prenups May No Longer Be Final: Proposed changes to South African divorce law will give courts the power to redistribute assets in certain marriages, even if a prenuptial agreement states that each party’s estate remains separate. This marks a major shift from the current absolute legal standing of antenuptial contracts.
- New Protections for Vulnerable Spouses: The amendment bill follows a Constitutional Court ruling and aims to address financial imbalances in marriages out of community of property without accrual. Spouses who contributed in non-financial ways, such as caregiving or supporting a partner’s career, could now have a legal claim to assets during divorce.
- Wider Marriage Reforms Underway: Alongside divorce reform, the Marriage Bill of 2023 seeks to unify civil, customary, and religious marriages into a single legal framework. It introduces stronger protections against child marriage, ensures legal recognition for all unions, and addresses corruption and fraud in marriage registrations.
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Legislation to Overhaul Divorce Asset Division
In June 2025, the Minister of Justice and Constitutional Development, Mmamoloko Kubayi, revealed that the General Laws (Family Matters) Amendment Bill is expected to be introduced into Parliament. The bill is scheduled to be considered and possibly passed within the current legislative year.
If passed, the law could significantly change how divorces are negotiated and settled in South African courts, introducing a wave of uncertainty for couples who believed their assets were legally locked in.
The primary objective of the bill is to reform the way marital assets are distributed when a marriage ends. The legislation aims to close a longstanding loophole in the law that has left certain spouses, particularly those who contributed in non-financial ways, at a disadvantage when marriages dissolve due to divorce or death. For stay-at-home parents or spouses who sacrificed careers to support their families, this could represent a long-overdue recognition of their role in building the marital estate.
Vulnerabilities in Current Matrimonial Law
As the law currently stands, spouses married out of community of property without the accrual system often walk away from a failed marriage with no legal claim to any assets. This remains true even in cases where they have made substantial non-financial contributions, such as raising children or supporting a partner’s career. Many South Africans have unknowingly entered such contracts, only to face financial ruin after a divorce, despite having supported the marriage for years behind the scenes.
The proposed amendment will empower South African courts to redistribute assets in these marriages. In situations where one spouse would otherwise leave the marriage financially compromised despite having made significant personal sacrifices, the court could intervene to ensure a more balanced and equitable outcome. This marks a new era of judicial discretion that could see prenups come under heavier legal scrutiny than ever before.
Trigger for the Change: A Constitutional Court Decision
This legislative shift follows an October 2023 ruling by the Constitutional Court, which found specific sections of the Divorce Act to be unconstitutional. The court determined that these provisions unfairly excluded certain spouses from asset redistribution and declared them invalid, prompting the legal reform currently under way. The ruling sent ripples through the legal community, and lawmakers have since been under pressure to act swiftly to align with constitutional principles.
Impact on Existing Prenuptial Contracts
Bertus Preller, a family law expert and mediator at Maurice Phillips Wisenberg, has cautioned that while the proposed amendments serve a focused legal purpose, they could have broader implications for antenuptial agreements, more commonly known as prenups. These contracts are typically signed prior to marriage and represent mutual agreement on how the couple’s financial affairs will be handled.
Couples who believed these agreements were watertight are now being urged to re-evaluate their legal standing.
Historically, prenups have been treated as binding and final, with courts upholding the full terms of the agreement without interference. However, the new legislation introduces a statutory authority for the courts to override those terms under specific circumstances. This injects a new element of unpredictability into what was once a rigid and clearly defined legal area.
Court Powers Will Override Prenup Terms in Certain Cases
Although the amendments will not outright invalidate existing prenuptial agreements, they will give courts discretion to intervene if enforcing the terms would result in a seriously unfair outcome for one spouse. Even if the contract stipulates complete separation of property, a court may still authorise redistribution of assets if justified by the circumstances. This creates a potential legal minefield for wealthy individuals or business owners trying to protect their estates through prenups.
This development signals a departure from the traditional view that antenuptial contracts are immune from judicial scrutiny. In practical terms, the courts will gain the ability to prioritise equitable outcomes over strict adherence to contractual provisions where hardship would otherwise occur. Legal experts warn this could lead to a rise in postnuptial litigation and a shift in how high-net-worth individuals approach marriage altogether.
Couples Advised to Rethink Their Marriage Contracts
Preller has advised couples who are contemplating marriage to reconsider their choice of matrimonial property regime in light of the new legislative direction. Under the current legal framework, a marriage out of community of property without accrual has generally provided certainty that each party’s financial estate remains separate and unaffected by the marriage.
However, if the proposed changes become law, couples who enter such arrangements will need to accept that courts may still exercise a discretionary power to redistribute assets, especially to prevent one partner from being financially harmed. The idea of full protection under a no-accrual contract will no longer be guaranteed.
Future spouses are now being encouraged to seek legal advice that goes beyond standard prenup templates, and consider building in contingency clauses that anticipate judicial intervention.
In parallel with the proposed divorce-related changes, Parliament is continuing with efforts to reform the broader legal framework governing marriage in South Africa. The Portfolio Committee on Home Affairs is progressing with public hearings on the Marriage Bill of 2023. The upcoming weekend will see the sixth provincial consultation take place, forming part of the national public participation process. Lawmakers appear committed to overhauling not just divorce law but the entire legal infrastructure underpinning marriage in South Africa.
A Unified Law for All Marriages in South Africa
The Marriage Bill seeks to unify and rationalise the country’s various marriage laws by introducing a single statute that will replace the existing legislation governing civil marriages, customary marriages, and civil unions. The intention is to modernise the system and make it more inclusive of all relationship types. This will make South Africa one of the few countries in the world to legally recognise all marriages on equal terms, regardless of background.
Under the new legislation, all marriages in South Africa will be recognised regardless of religious affiliation, cultural practice, sexual orientation, or belief system. Any marriage conducted in accordance with custom, faith, or personal convictions will be legally recognised by the state. This level of inclusivity has been lauded by activists and is seen as a progressive step in safeguarding the rights of marginalised communities.
Recognition of Existing and Future Marriages
The new legal framework will also protect marriages that were entered into prior to the commencement of the new law. This ensures continuity and legal recognition for those already married under the current laws.
Another significant development is the introduction of a minimum age requirement. The bill will make it illegal for anyone under the age of 18 to be married, and includes new offences and penalties for individuals who facilitate, participate in, or solemnise such unions. This clampdown comes in response to growing public concern over child marriage and its long-term social and psychological consequences.
Expanded Role for Marriage Officers
The bill further empowers the Minister of Home Affairs to designate marriage officers from various sectors of society. This includes allowing leaders from traditional and community-based structures to become legally recognised marriage officers, provided they meet specific eligibility requirements set out in the bill. This is intended to bring legal recognition to longstanding cultural practices, while ensuring they meet constitutional standards.
Public Response and Further Issues Raised
According to the committee, community engagement across several provinces including Gauteng, KwaZulu-Natal, the Eastern Cape, Mpumalanga, and the North West has so far been broadly positive. Members of the public have expressed support for measures aimed at preventing fraudulent marriages, such as instances where individuals unknowingly find themselves registered as married to foreign nationals without their consent.
This concern points to deeper issues of corruption and administrative failures within the Department of Home Affairs, which the new laws aim to address. In addition, members of the public have urged lawmakers to tackle outdated practices, including aspects of lobola and traditional customs that some view as bordering on coercive or forced marriage. This reflects a growing demand for marriage law to evolve with modern societal values, particularly around autonomy, consent, and gender equality.
Conclusion
South Africa is poised to make significant changes to how marriages and divorces are handled, with new laws likely to reshape the legal and financial expectations for couples. Prenuptial agreements, once considered airtight, may now be subject to judicial review where fairness is at stake. Simultaneously, broader marriage law reforms aim to ensure inclusivity, prevent abuse, and modernise outdated practices. Couples planning to marry should seek legal advice and be fully informed of these developments before signing any binding contracts.
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