Understanding Marriage and Property Ownership in South Africa

Understanding Marriage and Property Ownership in South Africa

"While your wedding day will likely be one of the happiest and most significant moments of your life, there are important factors to consider beyond just the big day. One of the most critical is how your marital regime and antenuptial contract (ANC) can impact your financial future and property ownership," says Gerhard Kotzé, CEO of the RealNet Property Group.

"Recent changes in South African marriage laws, along with a major Constitutional Court ruling, have significantly impacted how assets are divided in the event of divorce or the death of a spouse. These changes are particularly important for couples married out of community of property with an ANC that excludes the accrual system."

What Has Changed?

Previously, if you were married out of community of property and your ANC excluded the accrual system, you had no claim to your spouse's assets if the marriage ended in divorce or death. However, a landmark Constitutional Court ruling in October 2023 has altered this.

The court now grants judges the authority to redistribute assets between spouses in these cases if deemed fair and reasonable. This means that if one spouse made significant contributions to the marriage-whether financial or non-financial, such as raising children or managing the household-they may now be entitled to a share of the assets.

How This Affects Property Ownership

Although an ANC outlines how assets should be divided, courts now have the discretion to modify these agreements if one spouse applies for asset redistribution. For example, if one spouse owns a home in their name alone but the other made substantial contributions to the marriage in other ways, the court may rule that the property should be shared.

Customary Marriages and Lobola

These legal updates are part of a broader effort to modernize South Africa's marriage laws. The proposed Marriage Bill of 2023 seeks to ensure equal treatment of all marriage types, including customary marriages and civil unions. As a result, these changes could also impact how assets are divided in customary marriages in the future.

What You Should Do

Whether you're already married, planning to get married, or going through a divorce, these legal changes make it essential to review your antenuptial contract to ensure it still aligns with your current situation. Consulting a property expert can also help you understand how these new rules may affect your assets and financial future.