Antenuptial Contracts and Asset Redistribution: What SA’s '25 Divorce Law Reform Means for You

South Africa’s divorce laws are undergoing a historic transformation. In June 2025, the General Laws (Family Matters) Amendment Bill was announced by the Minister of Justice, aiming to protect spouses from unfair asset exclusion, especially in marriages out of community of property without accrual. This follows a 2023 Constitutional Court judgment which found that it is unconstitutional for spouses who made significant non-financial contributions (like raising children or managing a household) to walk away with nothing in divorce or death.

Key Changes Coming Under the New Bill

The proposed reforms empower courts to override the strict terms of antenuptial contracts in certain cases. This affects two key marriage types:

• Pre-1984 marriages (before accrual was introduced)

• Post-1984 marriages excluding accrual in the antenuptial contract

Under the new provisions, courts may redistribute assets at divorce or death where it is just and equitable, even if an antenuptial contract excluded such redistribution.

Closing the Fairness Gap

Historically, a spouse married out of community without accrual had no legal right to assets, regardless of their contributions to the household or spouse’s career. Now, courts will weigh

non-financial contributions, like parenting or unpaid support roles, and may allocate a portion of assets, such as a business, home, or savings to the spouse who otherwise would have been left with nothing.

Does This Nullify Antenuptial Contracts?

No, couples can still sign contracts excluding accrual. However, those contracts are no longer absolute. If enforcing the contract leads to unconscionable outcomes, the court can step in.

Courts will not apply a blanket 50/50 division. Instead, they will assess fairness based on each spouse’s overall contribution to the marriage, both financial and non-financial.

How It Applies to Different Marriages

• Civil Marriages (Custom and Contract):

  • All antenuptial contracts remain valid

  • Redistribution applies in extreme imbalances

• Muslim Marriages (Post-May 2024):

  • Fully recognised under civil law

  • Courts can now issue divorce decrees and asset orders

  • Equitable sharing and maintenance can be enforced

• Customary Marriages:

  • Automatically in community of property unless excluded

  • Women in polygamous or traditional unions are protected under amended laws

• Same-Sex and Hindu Marriages:

  • Treated equally under the Civil Union Act and other reforms

  • All legal protections apply at divorce or death

    
    

Legal Takeaways for 2025

• Legal certainty no longer means financial certainty, especially in antenuptial marriages

• Drafting ANC contracts now requires anticipating fairness clauses

• All family law practitioners must prepare for increased mediation, guided by strengthened powers for the Office of the Family Advocate

  
  

Whether you’re considering an antenuptial contract or facing divorce, Kern, Armstrong & Associates can guide you through the law’s evolving landscape.