Family Law South Africa 2026: Divorce Amendment, Redistribution & Child Relocation

Family law South Africa has undergone its most significant overhaul in decades, driven by a wave of legislative reform that began in 2024 and continues to reshape how courts handle divorce, property division and parental disputes in 2026. The Divorce Amendment Act, the General (Family) Laws Amendment Bill and updated guidance from the South African Law Reform Commission (SALRC) have collectively introduced broader redistribution powers, tighter interim-relief procedures and clearer frameworks for child relocation. These changes carry immediate consequences for separating spouses, particularly high-net-worth individuals (HNWI) and business owners, as well as for the family lawyers, advocates, accountants and family offices that advise them.

This guide breaks down the core legislative amendments, explains their practical effect, and provides the checklists and drafting considerations practitioners need right now.

Executive Summary: What Changed in 2024–2026 and Why It Matters

The 2024–2026 period has been one of significant development in South African family law. The most significant changes have arisen from a combination of Constitutional Court decisions, legislative reform relating to Muslim marriages, and proposed amendments aimed at expanding redistribution remedies for spouses married out of community of property. Practitioners should note that some reforms are already in force, while others remain subject to the legislative process and commencement provisions.

Key developments include:

• Recognition of Muslim marriages under the Divorce Act. The Divorce Amendment Act 1 of 2024 introduced provisions dealing with Muslim marriages, including the protection of dependent and minor children and access to redistribution and forfeiture remedies on divorce.
• Expanded redistribution powers. Following the Constitutional Court decision in EB v ER; KG v Minister of Home Affairs, Parliament introduced the General (Family) Laws Amendment Bill, 2025, which proposes extending redistribution claims to all marriages out of community of property where accrual sharing has been excluded.
• Ongoing child-relocation reform. The South African Law Reform Commission (SALRC) has proposed reforms aimed at providing greater certainty in relocation disputes involving children. These proposals remain influential but should not be treated as enacted law unless and until adopted by Parliament

Core Legislative Changes: Family Law South Africa Under the Divorce Amendment Act & Related Bills

Key Amendments to Asset Redistribution, Interim Relief and Child Relocation

The Divorce Amendment Act 1 of 2024 primarily addressed the treatment of Muslim marriages within the framework of the Divorce Act. The Act introduced provisions relating to Muslim marriages, dependent children, redistribution of assets and forfeiture of patrimonial benefits in appropriate cases.

Separately, the Constitutional Court in EB v ER; KG v Minister of Home Affairs declared aspects of section 7(3) of the Divorce Act constitutionally invalid because redistribution relief was unavailable to certain spouses married out of community of property after the introduction of the Matrimonial Property Act. In response, the General (Family) Laws Amendment Bill, 2025 was introduced to remove the historical limitation that restricted redistribution relief to certain pre-1984 marriages. Practitioners should verify the commencement status of these amendments before relying upon them in litigation.

Timeline and Status of Reforms

Note: Exact commencement dates for certain provisions should be confirmed against the Government Gazette, as phased implementation may apply to specific clauses.

Redistribution Claims After the Amendments: When and How to Bring Them

Legal Basis Under the Divorce Act

Redistribution claims are governed by section 7(3)-(6) of the Divorce Act. Historically, redistribution relief was largely limited to certain marriages concluded before the commencement of the Matrimonial Property Act 88 of 1984. Following the Constitutional Court’s decision in EB v ER; KG v Minister of Home Affairs, legislative amendments have been proposed to extend redistribution remedies more broadly to spouses married out of community of property where accrual sharing has been excluded. Practitioners should carefully verify the current legislative position and commencement dates applicable at the time of instituting proceedings.

The court retains broad discretion in weighing factors such as each spouse’s existing means, earning capacity, financial needs and obligations, contributions (financial and non-financial) to the maintenance of the family, and any other factor the court considers relevant. The likely practical effect will be a significant expansion in the number and value of redistribution claims, particularly in HNWI divorces where one spouse has accumulated substantial assets in trusts, private companies or offshore structures while the other spouse made primarily domestic contributions.

Procedural Steps and Evidentiary Checklist

Practitioners bringing redistribution claims should follow a structured approach to evidence gathering and pleading. The following checklist outlines the core steps:

1. 1. Obtain and analyse the antenuptial contract. Confirm whether the accrual system applies and review any exclusion clauses. Identify assets potentially excluded from sharing.
   2. Commission forensic valuations. Instruct independent valuators for immovable property, business interests, share portfolios, trusts (beneficial interests and loans) and retirement funds.
   3. Document non-financial contributions. Collate evidence of homemaking, childcare, career sacrifices, and contributions to the other spouse’s business or professional development.
   4. Prepare a detailed schedule of assets and liabilities. Include assets held directly, through trusts, close corporations and private companies, and in offshore structures.
   5. Draft the redistribution claim. Set out the factual and legal basis for the redistribution sought, including the parties’ respective contributions to the marriage, its duration, the standard of living enjoyed during the marriage, and the financial circumstances of each spouse following the divorce.
   6. File and serve. The redistribution claim is typically included as part of the main divorce pleadings (combined summons or counterclaim) and must comply with the Uniform Rules of Court.

Remedies and Ancillary Relief

Redistribution is only one element of the ancillary relief available on divorce. Courts may also order:

• Pension-interest division under the Divorce Act read with the Pension Funds Act 24 of 1956, allowing direct claims against the non-member spouse’s pension or provident fund.
• Trust asset piercing where the court is satisfied that a trust is the alter ego of a spouse has been utilised to conceal assets to the extent and in a manner that is deemed to be an unconscionable abuse.
• Forfeiture of patrimonial benefits under section 9 of the Divorce Act, where a party’s misconduct or the circumstances of the marriage justify it.
• Transfer or sale of specific assets, including immovable property and shares in private companies, subject to appropriate conditions and timelines set by the court.

For business owners, structuring ancillary relief requires careful coordination between the family lawyer and the client’s tax adviser, as the form of any asset transfer will have capital gains tax, donations tax and transfer duty consequences, discussed in detail in the tax section below.

Property Regimes, Antenuptial Contracts and Drafting for HNWI

Antenuptial Contract (ANC), Practical Drafting Points

An antenuptial contract remains the most important family law document a South African couple can execute before marriage. However, recent Constitutional Court developments and proposed legislative amendments have increased scrutiny of marriages concluded out of community of property without accrual, meaning practitioners should monitor the evolving redistribution regime when drafting or reviewing antenuptial contracts. Practitioners drafting or reviewing ANCs should now consider the following:

• • Accrual system inclusion or exclusion. Including the accrual system provides a structured sharing mechanism and may reduce litigation risk. Excluding it no longer guarantees complete ring-fencing of assets.
  • Commencement-value schedules. Where the accrual applies, both parties should declare accurate commencement values at the date of marriage. Under-declaration creates disputes at divorce. Recent case law indicates that it is not sufficient for a practitioner to take a “rough estimate”. The commencement value determination needs to be fully advised and carefully determined.
  • Exclusion clauses. Assets received by way of inheritance or donation are typically excluded from the accrual by law. Additional contractual exclusions (e.g., pre-marital business interests, trust distributions) should be drafted explicitly.

Unregistered Customary Marriages: Property and Parental Rights

Recognition Under the Recognition of Customary Marriages Act

The Recognition of Customary Marriages Act 120 of 1998 affords legal recognition to valid customary marriages, whether or not they have been formally registered. While registration assists in proving the existence of the marriage, a failure to register does not invalidate the union or deprive a spouse of the legal rights associated with the marriage. Property, maintenance and parental-rights disputes are determined with reference to the applicable legislation, the particular facts of the marriage and developing Constitutional Court jurisprudence.

It is however important to note that in order to regulate the proprietary consequences of a customary marriage through an antenuptial contract, the parties much conclude the agreement before the first day of any matrimonial ceremonies. Customary marriages are often performed over several days and the first day of the ceremony indicates the date on which, prior thereto the antenuptial should have been concluded.

Steps to Secure Property and Parental Rights

Spouses in unregistered customary marriages should take the following practical steps:

1. Gather proof of marriage. Collect affidavits from family elders, photographs, lobola receipts and communications evidencing the customary union.
2. Apply for late registration. Submit an application to the Department of Home Affairs with supporting documentation and the prescribed fee.
3. Assert parental rights. If parental responsibilities and rights are in dispute, apply to the Children’s Court or High Court under the Children’s Act 38 of 2005 for a formal order.
4. Protect property interests. Where immovable property is registered in only one spouse’s name, consider seeking appropriate interim relief, including an interdict, to prevent the disposal or encumbrance of the property pending the divorce or property dispute.

Child Relocation and Cross-Border Issues (Including the Hague Convention)

Domestic Relocation: Consent Versus Court Application

Domestic relocation, whether within a province or interprovincially, is not expressly governed by a single statutory provision. Instead, courts apply the “best interests of the child” standard enshrined in section 28(2) of the Constitution and section 7 of the Children’s Act 38 of 2005. Where both parents hold co-parental responsibilities and rights, the relocating parent must obtain the other parent’s written consent or, failing that, a court order authorising the move. Read Relocation Applications Children Decided South Africa | Global Law Experts for more information on this topic.

SALRC Discussion Paper 155 proposes a more structured legislative framework for relocation disputes and identifies a range of factors that courts may consider. While these proposals have been influential in legal commentary and litigation, the governing legal standard remains the best interests of the child as developed through the Constitution, the Children’s Act and case law.

International Relocation and the Hague Convention 1980

South Africa is a contracting state to the Hague Convention on the Civil Aspects of International Child Abduction (1980). This means that if a child is wrongfully removed from or retained outside South Africa in breach of a parent’s rights of custody, the aggrieved parent can invoke the Convention to seek the child’s prompt return. The Department of Justice acts as the Central Authority for incoming and outgoing Hague applications.

Practitioners handling international relocation should follow this checklist:

1. Confirm that both the country of departure and the destination country are Hague Convention signatories.
2. Determine whether the applicant has “rights of custody” within the meaning of the Convention (this includes joint guardianship and co-holder of parental responsibilities).
3. If consent to relocate is refused, file an application in the relevant High Court for an order authorising international relocation. The court will apply the best-interests standard and consider the factors outlined by the SALRC and recent case law.
4. If a child has already been removed without consent, file a Hague return application through the Department of Justice Central Authority or directly in the courts of the country where the child is located.
5. Be aware that Hague return proceedings are summary in nature, the court does not determine custody on the merits but rather whether the child should be returned to the country of habitual residence for the underlying dispute to be resolved there.

Recent Case Law and Court Trends

Recent High Court decisions have reinforced that the child’s best interests are the paramount consideration in relocation disputes. Courts have shown an increasing willingness to scrutinise the relocating parent’s motivations and to require detailed evidence regarding schooling, housing, the child’s support structures and arrangements for maintaining and preserving the relationship with the non-relocating parent. While the recommendations contained in SALRC Discussion Paper 155 are not binding law, they have contributed to the ongoing legal discussion around relocation disputes and may inform the development of future legislation and judicial reasoning.

Family Lawyers (Case Preparation Checklist)

• Review recent developments affecting redistribution claims, including the Constitutional Court’s decision in EB v ER; KG v Minister of Home Affairs and any subsequent legislative amendments or commencement provisions that may apply.
• Brief a forensic accountant early where business interests, trusts or offshore structures are involved.
• Consider SALRC Discussion Paper 155 recommendations when preparing relocation applications.
• Coordinate with tax counsel before finalising any settlement to ensure rollover relief applies correctly.
• Check whether the marriage is a customary union and, if unregistered, advise on late registration and its evidential impact.

Conclusion and Key Takeaways

South African family law continues to evolve through a combination of Constitutional Court judgments, legislative reform and developing jurisprudence. While some proposed reforms remain subject to the legislative process, practitioners and separating spouses should remain aware of the changing legal landscape and the potential impact on divorce, property division and parental-rights disputes.

The following key takeaways emerge from the developments discussed in this article:

1. Recent Constitutional Court decisions and proposed legislative amendments have significantly influenced the law relating to redistribution claims in marriages out of community of property.
2. Antenuptial contracts remain a critical wealth-protection tool, but practitioners should keep abreast of developments affecting the treatment of marriages concluded without accrual.
3. Non-financial contributions to a marriage continue to play an important role in disputes concerning the equitable distribution of assets.
4. Valid customary marriages enjoy legal recognition whether or not they have been formally registered, although registration remains valuable for evidentiary purposes.
5. In relocation disputes, the child’s best interests remain the paramount consideration, with courts requiring detailed evidence regarding the proposed move and its impact on the child.
6. Given the pace of legal developments in this area, parties should obtain specialist legal advice before instituting proceedings, negotiating settlements or making decisions that may affect property or parental rights.

Sources

1. Divorce Act 70 of 1979, South African Government
2. Divorce Amendment Act 1 of 2024
3.  EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others [2023] ZACC 32
4. General (Family) Laws Amendment Bill B20-2025
5. Discussion Paper 155: Relocation of Families with Reference to Minor Children (November 2021)
6. HCCH, Hague Convention on International Child Abduction 1980
7. Constitutional Court of South Africa