Section 7 of the Divorce Act 70 of 1979 (South Africa)

Section 7 of the Divorce Act 70 of 1979 deals with the division of assets and spousal maintenance upon divorce in South Africa. This section outlines how courts can order the division of a couple’s estate and determine if maintenance should be paid by one spouse to the other. Below is a breakdown of the key provisions under Section 7:

1. Settlement Agreements (Section 7(1))

Parties to a divorce can agree on the division of assets and maintenance in a settlement agreement, which the court can then make an order. If both parties agree on the division of property and maintenance, the court typically honours this agreement and incorporates it into the final divorce decree.

Example: A couple might agree that one spouse will retain the family home while the other keeps certain savings or investments.

2. Court’s Discretion in Absence of Agreement (Section 7(2))

If the parties cannot agree on the division of assets or maintenance, the court has the discretion to make a decision. The court will consider several factors, including:

• The financial needs and means of the parties.
• Their standard of living during the marriage.
• The age and health of both spouses.
• The duration of the marriage.
• Any direct or indirect contributions one spouse made to the family or the other spouse’s career.

For more detailed guidance on this, visit Divorce Laws South Africa.

3. Pension Fund Division (Section 7(8))

Section 7(8) of the Divorce Act allows for the division of pension benefits when the spouses are married in community of property or with accrual. The court can order that a portion of one spouse’s pension fund be paid to the other spouse upon divorce. This is known as the clean-break principle, which allows the non-member spouse to receive their portion of the pension immediately, even if the member spouse has not yet retired.

For further information on how this works, refer to Van Deventer Attorneys.

4. Forfeiture of Benefits (Section 7(3))

The court may also order forfeiture of benefits if one spouse would unduly benefit from the division of assets. This typically applies in cases where one spouse has contributed very little to the marriage or where there has been misconduct. Forfeiture can affect assets such as property, savings, or pension funds, depending on the circumstances of the case.

Learn more about forfeiture under Section 7 by visiting Divorce Laws South Africa.

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