Understanding the Existing Regimes
Since its enactment on 1 November 1984, the Matrimonial Property Act No. 88 of 1984 has formed the cornerstone of South African matrimonial property law. It shifted the default from the earlier regime of community of property to modern alternatives offering independence or equity.
Today, couples have three principal options when entering into marriage: in community of property, out of community of property with accrual, and out of community of property without accrual.
In Community of Property (Default)
When spouses marry without entering into an antenuptial contract, they are automatically subject to community of property. This regime combines their entire financial landscape into a single joint estate: from assets acquired before the marriage to those accumulated during it, as well as all debts.
While this approach embodies equality, it also exposes both spouses to financial risk if one accrues significant liabilities, making the regime’s simplicity its greatest vulnerability.
Out of Community of Property with Accrual
Couples who prefer autonomy often choose to marry out of community of property but include an accrual system via an antenuptial contract registered before the wedding.
Under this arrangement, each spouse maintains separate ownership of premarital assets and is free to manage finances independently. However, upon dissolution, a court assesses the increase, or accrual, in each spouse’s estate and awards to the lesser-advantaged spouse half of the difference. The fairness of this regime lies in its ability to acknowledge non-financial contributions, such as homemaking or supporting a partner’s career, by translating those into equitable financial outcomes.
Out of Community of Property without Accrual
This most independent arrangement, also secured through an ante nuptial contract, preserves the complete financial separation of both parties. Neither assets nor debts are shared, and no redistribution occurs at dissolution.
While appealing for couples with significant independent wealth or in subsequent marriages, it offers no protection or compensation for non-economic contributions: a feature that has increasingly attracted constitutional scrutiny.
Judicial Turning Point: Constitutional Court Ruling on Section 7(3)
A major turning point came on 10 October 2023, when the Constitutional Court, in KG v Minister of Home Affairs and Others 2024 (2) SA 1 (CC), struck down section 7(3)(a) of the Divorce Act as unconstitutional.
The provision had permitted redistribution orders only for marriages out of community of property without accrual that were concluded before the Matrimonial Property Act took effect in 1984. The court found this distinction unlawfully discriminatory, particularly penalising spouses, often women, whose marriages excluded accrual after 1984, preventing them from seeking redistribution despite non-financial contributions.
The court remedied this by “reading in” the broader application of redistribution rights to all such marriages, regardless of date or whether they ended in divorce or death. Parliament was granted 24 months, until 10 October 2025, to enact permanent reform.
Legislative Response: The General (Family) Laws Amendment Bill, 2025
In response, the government published the explanatory summary of the General (Family) Laws Amendment Bill of 2025 in June 2025, and formally tabled it in Parliament in August 2025.
Once enacted, the bill will amend the Matrimonial Property Act to embed the redistribution remedy for all antenuptial contracts excluding accrual, regardless of when they were concluded. It explicitly extends redistribution rights to cases where the marriage ends in death as well as divorce and strengthens the Family Advocate’s remit to protect vulnerable spouses and children during these processes.
Broader Reform Vision: SALRC’s Project 100E
Beyond legislative adjustments, the South African Law Reform Commission’s Project 100E seeks to modernise matrimonial law comprehensively. Proposals include repositioning out of community of property with accrual as the default regime, mandating independent legal advice and full financial disclosure for antenuptial contracts, enhancing courts’ discretion to order redistribution based on fairness, simplifying intra-marriage regime changes, reforming customary and religious marriage law, closing asset-protection loopholes like trusts or retirement funds, and updating cross-border marriage rules. These reforms, if implemented, could represent the most sweeping overhaul of the Matrimonial Property Act to date.
What This Means for Couples and Practitioners
This evolving legal landscape carries substantial implications. Courts now wield greater discretion to order redistribution in cases previously barred under strict contract regimes. Antenuptial agreements and mid-marriage changes must be approached with heightened diligence, anticipating robust judicial scrutiny. Legal practitioners should review existing contracts, assist clients in documenting non-financial contributions, and prepare for potentially increased redistribution claims. For couples entering marriage, thoughtful legal counselling is essential to ensure fairness now recognized by evolving jurisprudence.
Conclusion
South Africa stands on the threshold of transformative change in matrimonial property law. The Constitutional Court’s landmark judgment, the pending legislative reforms, and the SALRC’s forward-looking proposals collectively point toward a more equitable future, where all contributions, financial or otherwise, are duly recognised. Whether planning marriage, navigating separation, or advising clients, now is the moment to align strategies with the evolving legal horizon.
Contact SchoemanLaw Inc for assistance today.
https://schoemanlaw.co.za/our-services/family-law/
Kerri Stewart | SchoemanLaw Inc
Attorney
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