Divorce law in South Africa has changed significantly over the past three years. The Constitutional Court has struck down long-standing limits on how assets may be divided, Parliament has brought Muslim marriages into the Divorce Act, and further legislation is now before Parliament. This article summarises where the law stands today, what the courts have recently decided and what is being proposed. Let's look at all the developments and what you need to know.
The Starting Point: Matrimonial Property Regimes
How assets are dealt with on divorce depends largely on the matrimonial property regime. A civil marriage is in community of property unless the parties sign an antenuptial contract before the marriage. Where they do, the marriage is out of community of property, either with or without the accrual system. In a marriage without accrual, each spouse traditionally kept their own estate on divorce, regardless of what the other spouse had contributed.
Section 7(3) of the Divorce Act 70 of 1979 has for many years allowed a court to order that assets of one spouse be transferred to the other in certain marriages out of community of property. Until recently, however, this redistribution remedy applied, in the main, only to marriages concluded before 1 November 1984, when the Matrimonial Property Act 88 of 1984 came into operation.
Redistribution Now Applies to All Marriages Without Accrual
In EB (born S) v ER (born B) NO and Others; KG v Minister of Home Affairs and Others [2023] ZACC 32, decided on 10 October 2023, the Constitutional Court declared section 7(3) of the Divorce Act unconstitutional in two respects. First, it excluded marriages out of community of property without accrual concluded on or after 1 November 1984. Second, it offered no remedy where such a marriage ended through the death of a spouse rather than divorce.
The court found that the date limitation indirectly discriminated against women, who most often contribute to the other spouse's estate by caring for the home and children or by supporting the other spouse's business, and that there was no rational basis for denying the remedy where the marriage ends by death. It suspended its declarations for 24 months to give Parliament time to amend the law and, in the meantime, made interim changes to the legislation: section 7(3)(a) of the Divorce Act is to be read without the words limiting it to marriages entered into before 1 November 1984, and a new section 36A is read into the Matrimonial Property Act to provide a remedy where the marriage ends by death. The suspension has since been extended to 10 April 2027, and the interim position remains in place.
In practice, this means that a spouse married out of community of property without accrual may now ask the court for a redistribution order, whenever the marriage was concluded. The court must be satisfied that the order is just and equitable, having regard to the applicant spouse's direct or indirect contribution to the maintenance or increase of the other spouse's estate, and to the other factors listed in section 7(5) of the Divorce Act.
Pension Interests: The Latest Judgment
One exclusion remained. Section 7(7)(c) of the Divorce Act still prevented a court from including a spouse's pension interest in a redistribution order in post-1984 marriages without accrual. For many couples, a pension fund is one of the largest assets in the estate.
On 9 October 2026, in GD v Minister of Home Affairs and Others [2026] ZACC 39, the Constitutional Court unanimously confirmed a High Court order declaring section 7(7)(c) invalid. The court found that, after EB and KG, the distinction between pre-1984 and post-1984 marriages no longer served any purpose and that the exclusion of pension interests was irrational. It also found that the exclusion fell more heavily on women and amounted to indirect discrimination.
The Minister of Justice asked the court to suspend the order for up to three years to allow Parliament to deal with the matter. The court refused. The order took effect immediately. It does not, however, affect the legal consequences of anything done before 9 October 2026, so divorces that had already been finalised are not reopened.
It is important to understand what this judgment does not do. A pension interest is not now automatically shared on divorce. It simply forms part of the assets a court may consider when deciding whether to make a redistribution order, and the court must still be satisfied that such an order is just and equitable.
Customary Marriages Followed by a Civil Marriage
Many couples first conclude a customary marriage and later have a civil ceremony. A monogamous customary marriage is in community of property unless the parties concluded an antenuptial contract before the customary marriage. Some couples sign an antenuptial contract before the civil ceremony, believing that this changes their property regime.
In VVC v JRM and Others [2026] ZACC 2, decided on 21 January 2026, the Constitutional Court held that this is not the case. The majority, in a judgment by Majiedt J, found that the customary and civil marriages form one continuous marriage. An antenuptial contract signed after the customary marriage is therefore an attempt to change the property regime during the marriage, which may only be done with the approval of a court under section 21 of the Matrimonial Property Act. The contract in that case was invalid, and the marriage remained in community of property.
Couples in this position who believe they are married out of community of property should have their position checked. If they wish to change their regime, the proper route is an application to court under section 21.
Muslim Marriages
In Women's Legal Centre Trust v President of the Republic of South Africa and Others [2022] ZACC 23, the Constitutional Court held that the failure of the Marriage Act and the Divorce Act to recognise Muslim marriages was unconstitutional. Parliament responded to the Divorce Act defects through the Divorce Amendment Act 1 of 2024, which was assented to on 6 May 2024.
The Divorce Amendment Act defines a Muslim marriage as "a marriage entered into or concluded in accordance with the tenets of Islam". It provides that a Muslim marriage may be dissolved by a court by a decree of divorce, extends the protections for children in section 6 of the Divorce Act to children of Muslim marriages, and allows a court, in the absence of any agreement between the spouses on the division of their assets, to make a redistribution order, as well as a forfeiture order. Where a husband is party to more than one Muslim marriage, the court must take into account any contract between the parties. The amendments apply to Muslim marriages that subsisted on 15 December 2014, as well as to marriages that have been ended under Islamic law but where proceedings under the Divorce Act have been started and not finalised.
The courts have since confirmed that a talaq does not remove these protections. In S.W v A.L [2025] ZAWCHC 440, the Western Cape High Court held that a talaq pronounced after divorce proceedings had been instituted did not make the divorce action moot, and it granted the wife interim maintenance under Rule 43. A full bench of the Gauteng Division of the High Court, Johannesburg, went further in E.S v H.Z.A [2026] ZAGPJHC 262, decided on 12 March 2026, holding that a wife married under Islamic law may claim interim maintenance even after a talaq has been pronounced.
The position under the Marriage Act is less settled. In Speaker of the National Assembly and Another v Women's Legal Centre Trust and Others [2024] ZACC 18 the Constitutional Court extended the period for Parliament to amend the Marriage Act until 27 June 2026. The Marriage Bill, 2023, which is intended to provide a single framework for all marriages, including Muslim marriages, lapsed before the 2024 elections but was revived in the current Parliament. Public hearings by the Portfolio Committee on Home Affairs have been concluded, but the Bill has not yet been passed. Anyone affected should obtain advice on the current position.
What Is Before Parliament
The main divorce-related proposal currently before Parliament is the General (Family) Laws Amendment Bill [B20-2025]. The Portfolio Committee on Justice and Constitutional Development called for public comment on the Bill in October 2025, and comments closed on 10 November 2025. The Bill is still going through the parliamentary process.
In summary, the Bill proposes to:
- amend the Divorce Act so that a court granting a divorce may order a transfer of assets in a marriage out of community of property, regardless of when the marriage was entered into;
- amend the Matrimonial Property Act to provide for the distribution of property in a marriage out of community of property that ends through death; and
- amend the Mediation in Certain Divorce Matters Act 24 of 1987 to clarify and strengthen the functions of the Office of the Family Advocate.
The first two changes would give permanent legislative form to the position the Constitutional Court created in EB and KG. In GD, the court held that the remedy proposed in the Bill was the same as the remedy already available, which was one of its reasons for refusing to suspend its order. The changes to the Family Advocate's functions are likely to have the greatest practical effect on divorces involving children.
What This Means in Practice
Anyone who is divorcing, or who is advising a family member, should keep the following in mind:
- a spouse married out of community of property without accrual may now claim a redistribution of assets, whenever the marriage was concluded;
- pension interests may now be included in that claim, but they are not shared automatically;
- a couple who married under customary law and then signed an antenuptial contract before a civil ceremony may still be married in community of property;
- spouses in Muslim marriages have the protection of the Divorce Act, and a talaq does not remove the court's power to grant interim maintenance; and
- settlement agreements should be drafted with these changes in mind, as a spouse may now be entitled to more than was previously assumed.
It Is Best to Seek Legal Advice
These developments have widened the claims available to spouses and changed the way many divorces will be negotiated and decided. Each marriage is different, and the outcome will depend on the marriage regime, the date of the marriage, the assets involved and each spouse's contribution. It is best to seek legal advice before signing a settlement agreement or issuing a divorce summons, so that all available claims are properly considered.
Conclusion
The Constitutional Court has, in a series of judgments, moved divorce law towards a fairer division of assets between spouses, with particular concern for spouses who contributed to the household in ways that did not build up their own estates. Parliament is now catching up. Until the General (Family) Laws Amendment Bill is passed, the position is governed by the court's judgments, and practitioners and parties alike will need to follow further developments closely.
This article is for general information only and is not legal advice.
