Overview

The Marriage Bill [B43–2023] is poised to transform South Africa’s legal framework for marriage, divorce, and estate planning. A key focus of the Bill is enhancing legal protections for vulnerable spouses, particularly in contexts where power, income, and education disparities exist between partners.

As a financial adviser, understanding these reforms is essential to support your clients’ wealth protection, estate planning, and divorce preparedness. At Kevin Barnard Attorneys, we partner with advisers to provide integrated legal guidance—especially where clients face uncertainty around antenuptial contracts (ANCs) or unregistered partnerships.

Who Are Considered Vulnerable Spouses?

Under the proposed reforms, “vulnerable spouses” may include:

Non-earning partners such as homemakers or full-time caregivers
Spouses in customary or religious marriages without proper legal registration
Individuals in long-term cohabitation without legal protection
Persons in polygynous relationships or unequal marriages
Partners subject to economic abuse or dependency

These spouses often lack direct ownership of family wealth, placing them at risk during divorce, inheritance disputes, or partner death.

Key Legal Shifts: From Fragmentation to Uniform Protection

Current Landscape (Pre-Bill)

Separate laws govern civil, customary, and same-sex marriages, often leading to legal grey areas.
Marriages out of community of property can leave vulnerable spouses with no entitlement to shared assets.
Customary and religious marriages, if unregistered, may not be legally recognized, leading to inheritance and maintenance exclusions.

Post-Bill Transformation

The Marriage Bill unifies these laws into a single, inclusive legal system that:

Recognizes all marital unions, including religious and customary marriages, provided they are registered
Makes “in community of property” the default regime (unless an ANC specifies otherwise)
Empowers courts to consider indirect contributions, such as caregiving or home management, in divorce asset division
Extends legal remedies for unfair antenuptial contracts or arrangements made under duress or imbalance
Acknowledges multiple spouses in polygynous unions and provides guidance on equitable division

Estate Planning and Divorce: Strategic Guidance for Financial Advisers

Pre-Bill Estate Planning

Confirm marital regime during client onboarding
Assess validity and completeness of any antenuptial contracts
Identify unregistered marriages and evaluate risk exposure
Use trust structures and spousal maintenance clauses to secure dependents

Post-Bill Estate Planning (Future-Proofed)

Proactively review and update existing ANCs
Register any customary or religious marriages to activate protection
Prepare for court discretion in dividing assets based on non-financial contributions
Address concerns in informal partnerships by drafting cohabitation agreements

Divorce Planning and Wealth Structuring

The Bill grants courts expanded powers to ensure vulnerable spouses aren’t left destitute:

Discretionary redistribution of assets
Recognition of indirect contributions (child-rearing, home-making)
Potential override of unfair ANC terms
Equitable treatment in polygamous divorces

We assist financial advisers in integrating these factors into client divorce strategies, including pension splitting, structured settlements, and property division planning.

Interim Measures: What You Can Do Now

Though the Bill is not yet enacted, financial advisers should act now to:

Educate clients about coming changes
Identify high-risk cases (especially unregistered unions)
Collaborate with attorneys to draft or revise ANCs and wills
Encourage registration of previously unregistered marriages
Establish maintenance provisions for vulnerable spouses

At Kevin Barnard Attorneys, we are actively helping advisers and their clients audit, update, and future-proof their estate and matrimonial arrangements.

How Kevin Barnard Attorneys Can Help

We work alongside financial advisers to:

Conduct legal reviews of marital and estate documentation
Draft or revise antenuptial contracts and cohabitation agreements.
Assist with divorce planning, including equitable asset division and court submissions
Structure testamentary trusts, living wills, and inter vivos solutions to protect vulnerable parties
Offer in-person and virtual advisory sessions for your clients

Book a free 20-minute adviser consult
Email us at info@kbattorneys.co.za

Protection for Vulnerable Spouses Under South Africa’s New Marriage Bill: What Financial Advisers Need to Know

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