South Africa is moving forward with significant reforms to its divorce laws following constitutional challenges and court rulings that found certain parts of the existing system to be unfair. The changes are mainly linked to amendments to the Divorce Act 70 of 1979 and related family law legislation. These reforms were introduced after the Constitutional Court ruled that parts of the Divorce Act and Matrimonial Property Act were inconsistent with Section 9 of the Constitution, which guarantees equality before the law.
For many years, spouses married out of the community of property without the accrual system had limited legal protection if their marriages ended in divorce. In several cases, one spouse, often the financially weaker partner, could not claim a fair share of assets accumulated during the marriage. The Constitutional Court judgment in EB v ER and Others (2023) confirmed that this limitation unfairly discriminated against certain spouses.
As a result, Parliament introduced amendments to correct these imbalances. The new legal framework expands judicial discretion in divorce proceedings, strengthens protection for vulnerable spouses, clarifies recognition of certain religious marriages, and reinforces the rights of children. These updates align family law with constitutional principles and modern social realities in South Africa.
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Constitutional Court Judgment That Triggered Reform
The key turning point came with the Constitutional Court decision in EB v ER and Others [2023] ZACC 4. The Court declared that Section 7(3) of the Divorce Act was unconstitutional because it only allowed redistribution of assets for marriages out of community of property entered into before 1 November 1984. This date is significant because the accrual system was introduced through the Matrimonial Property Act 88 of 1984.
The Court found that limiting redistribution orders to pre-1984 marriages unfairly excluded spouses who entered into similar marriage regimes after 1984. In many cases, one spouse contributed indirectly through homemaking, childcare, or supporting the other spouse’s career, yet had no claim to share in accumulated wealth if the marriage ended.
The Constitutional Court suspended the declaration of invalidity for 24 months to allow Parliament to amend the law.
Expansion of Court Powers to Redistribute Assets
The amended legal framework now allows courts broader powers to order redistribution of assets in marriages out of community of property without accrual, regardless of when the marriage was concluded. This means that spouses married after 1984 under this regime are no longer automatically excluded from seeking a redistribution order.
Under the updated approach, courts may consider factors such as direct and indirect contributions made by each spouse. Contributions may include financial input, unpaid domestic work, child-rearing responsibilities, or assistance in growing a family business. This change ensures that non-financial contributions are legally recognised during divorce proceedings.
The legal basis for redistribution remains grounded in Section 7 of the Divorce Act, but it has now been expanded to meet constitutional equality standards.
Recognition of Muslim Marriages Under Divorce Law
One of the major developments is the clearer legal recognition of Muslim marriages within the Divorce Act framework. Historically, Muslim marriages were not fully regulated under civil divorce legislation, leading to uncertainty regarding asset division and maintenance rights.
In 2022, the Constitutional Court in Women’s Legal Centre Trust v President of the Republic of South Africa ruled that the failure to recognise Muslim marriages was unconstitutional. This decision required Parliament to amend legislation to provide legal protection to spouses in Muslim marriages.
The Divorce Amendment Act 1 of 2024 formally introduced provisions that recognise Muslim marriages for purposes of divorce, asset division, and maintenance. This ensures that spouses and children in Muslim marriages have access to the same legal protections available in civil marriages.
Impact on Matrimonial Property Systems
South Africa recognises three main matrimonial property systems. The new divorce reforms particularly affect marriages out of community of property without accrual.
Main Matrimonial Property Systems in South Africa
- In Community of Property – All assets and debts are jointly owned by both spouses.
- Out of Community of Property with Accrual – Each spouse retains separate estates during marriage, but growth in estates is shared upon divorce.
- Out of Community of Property without Accrual – Each spouse retains separate estates with no sharing of growth, unless a court orders redistribution.
Under the updated framework, courts may now intervene more broadly in the third category to prevent unfair outcomes.
Stronger Protection for Children
The new divorce framework continues to prioritise the best interests of the child, which is a constitutional requirement under Section 28 of the Constitution of South Africa. During divorce proceedings, courts must consider custody arrangements, parental responsibilities, and financial maintenance in a way that protects the welfare of children.
The Children’s Act 38 of 2005 works together with the Divorce Act to regulate parental rights and responsibilities. Courts may issue care and contact orders, determine maintenance obligations, and require parenting plans where necessary.
Interim relief for children during divorce proceedings can be requested under Rule 43 of the Uniform Rules of Court. This ensures temporary maintenance and care arrangements while the divorce case is pending.
Maintenance and Financial Support Provisions
The updated divorce law maintains the court’s authority to order spousal maintenance where appropriate. Courts consider factors such as the duration of the marriage, the financial position of each spouse, age, health, and earning capacity.
Section 7(2) of the Divorce Act allows courts to award maintenance based on fairness and need. The goal is to prevent financial hardship for a spouse who may have limited income or reduced employment opportunities due to marital responsibilities.
Maintenance orders can also be enforced under the Maintenance Act 99 of 1998, which provides mechanisms for recovering unpaid maintenance.
Encouragement of Mediation and Alternative Dispute Resolution
South African courts increasingly encourage mediation in family disputes. Mediation helps parties resolve issues related to asset division, child care, and maintenance without prolonged litigation. This approach reduces court backlogs and may result in faster settlements.
The Mediation in Certain Divorce Matters Act 24 of 1987 establishes the Office of the Family Advocate. The Family Advocate assists courts by investigating family circumstances and making recommendations regarding children’s best interests.
Legislative Process and Implementation Timeline
Following the Constitutional Court ruling in 2023, Parliament began drafting amendments to correct unconstitutional provisions. The declaration of invalidity was suspended for 24 months to allow legislative correction.
The Divorce Amendment Act 1 of 2024 has already been enacted, particularly addressing Muslim marriages. Further amendments related to redistribution powers are progressing through parliamentary processes to ensure compliance with constitutional requirements.