Redefining Marital Property: The 2025 Family Matters Bill

In property law, marital regimes shape everything from asset ownership to estate division. The financial framework a couple chooses at marriage can determine their entire economic future. Yet South African law has long struggled to value non-financial contributions - raising children, managing households, or supporting a partner’s career.

The General Laws (Family Matters) Amendment Bill, due before Parliament in 2025, aims to correct this. Following the Constitutional Court’s 2023 ruling in EB (born S) v ER (born B); KG v Minister of Home Affairs [2023] ZACC 32, it promises to transform how courts handle property division in divorce and estate matters.

Marital Property Framework

Since the Matrimonial Property Act of 1984, couples may marry:

1. In community of property – sharing a single joint estate

2. Out of community with accrual – separate estates, but sharing growth on dissolution.

3. Out of community without accrual – complete separation, with no sharing of growth.

While the accrual system already values non-financial input, spouses married out of community without accrual remain vulnerable, often left with nothing after years of unpaid care work.

The Constitutional Court’s Intervention

The Court found section 7(3) of the Divorce Act unconstitutional for limiting redistribution to certain older contracts, unfairly excluding many women. It held that all ANC-without-accrual marriages should qualify for redistribution and signalled that the principle should also apply to marriages ending by death - a gap now addressed by the 2025 Bill.

The 2025 Amendment Bill

The Bill:

1. Extends redistribution to all ANC-without-accrual marriages.

2. Allows redistribution when a marriage ends by death.

3. Expands the Family Advocate’s powers to protect vulnerable spouses and children.

Courts will now have discretion to order asset transfers where fairness demands, meaning an antenuptial contract will no longer automatically determine who walks away with what.

Implications for Estate Planning and Divorce

Executors must anticipate redistribution claims from surviving spouses, and wills may be indirectly affected where courts reallocate assets. In divorce, courts will place greater weight on homemaking, childcare, and other non-financial roles. Pension interests will also form part of the redistribution calculation, making settlement negotiations more complex.

Guidance for Couples

1. Before marriage: Seek independent advice when choosing a marital regime.

2. During marriage: Keep records of both financial and non-financial contributions.

3. At divorce or death: Obtain early legal advice to assess potential redistribution claims.

Why It Matters

The Bill recognises the real economy of marriage - where unpaid labour and care work create genuine value. It advances fairness but introduces uncertainty into estate and divorce planning. For practitioners, the challenge is to guide clients through this new landscape, balancing contractual freedom with the courts’ growing emphasis on equity.

Written by: Gustav Snyman
Moderated and approved by: Stacey Barnard

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