What every married and soon-to-be-married South African should know about a quiet revolution in our matrimonial property law.
Picture a marriage that lasted 28 years.
She left her job early on to raise three children, run the home, and free her husband to build his business. He built it. By the time the marriage ended, that business was worth millions and it was all in his name.
When they married, they signed an antenuptial contract, out of community of property, without accrual. In plain terms, that meant “what’s mine is mine, what’s yours is yours, and we never share the growth.” So, on the day the marriage ended, she could walk away with almost nothing despite nearly three decades of building a life and a family.
For most of our legal history, the courts would have shrugged and said: a deal is a deal. That principle even has a Latin name pacta sunt servanda, meaning contracts must be honoured. It is one of the oldest pillars of our law.
But the ground has shifted, and every couple in South Africa should understand how.
The turning point
In October 2023, the Constitutional Court handed down a judgment in a case known as EB v ER that changed the rules.
The Court found it unconstitutional that a spouse most often a wife could pour years of non-financial contribution into a marriage and leave with nothing simply because of the contract she signed at the start. Cooking, cleaning, raising children, supporting a partner’s career: the Court recognised these as real contributions, even though they never showed up in a bank statement.
In practical terms, the Court opened the door for a spouse to ask for a redistribution of assets a fairer share in two important situations:
On divorce, for couples married out of community of property without accrual; and
On the death of a spouse, for those same kinds of marriages.
What’s coming next
The courts have opened the door. Now Parliament is set to write it firmly into the statute books.
The General (Family) Laws Amendment Bill is currently before Parliament. It proposes to update three laws the Divorce Act, the Matrimonial Property Act, and the Mediation in Certain Divorce Matters Act so that a court will have a clear power to order a fair share-out of assets, even where an antenuptial contract says otherwise, if one spouse would otherwise suffer serious hardship.
Let’s be clear about what this does and doesn’t mean
This is the part where the headlines tend to get it wrong, so here is the honest version:
Your antenuptial contract is not being torn up. Prenups remain valid, important, and worth having. What’s changing is that a court now holds a kind of safety valve a discretion to step in and prevent a result that would be plainly, deeply unfair.
It’s not a free-for all. A court isn’t going to redraw every divorce settlement on a whim. It will be weighing real factors: how long the marriage lasted, what each person contributed, and how dependent one spouse became on the other.
There are two honest sides to this. Some worry it weakens the certainty that makes a contract worth signing in the first place. Others argue that real fairness demands it, because not every marriage begins on equal footing. Both views have merit and the courts will be looking for balance, not chaos.
What this means for you
Getting married? A prenup still matters but make sure both of you genuinely understand what you’re signing. Informed consent should be more than a signature on a page.
Going through a divorce? You may have rights you didn’t know you had particularly if you married out of community of property without accrual.
Lost a spouse? The rules around what a surviving spouse can claim from an estate are shifting too, and it’s worth knowing where you stand.
A word from us
We’re litigation attorneys, and we sit across the table from people on the hardest days of their life’s divorces, contested estates, families pulled apart over who gets what. What this change really says is something we’ve always believed: that fairness shouldn’t be sacrificed at the altar of fine print.
If any of this touches your situation, don’t guess. A short, honest conversation now can save you a great deal of heartache and money later.
Lizel Oosthuizen