What Is Section 7(3) Of The Divorce Act In South Africa?

Section 7(3) of the Divorce Act 70 of 1979 deals with the court’s power to order a forfeiture of the patrimonial benefits of the marriage in favour of one party. The section is sometimes called the “forfeiture clause” or the “clean-break clause,” and the court uses it where the marriage has broken down and one party would otherwise benefit from the assets of the marriage, despite their conduct that contributed to the breakdown.

This page explains Section 7(3) of the Divorce Act, the factors the court weighs, and the practical steps to apply for a forfeiture order. If you need help with a divorce matter, our Sandton-based Family Law team can assist.

What Section 7(3) says

Section 7(3) of the Divorce Act 70 of 1979 gives the court the power to order that one party forfeits the patrimonial benefits of the marriage in favour of the other party. The section is read with section 9 of the Divorce Act, which deals with the court’s power to vary the maintenance order.

The section has been interpreted by the courts over the years, and the modern approach is to weigh the parties’ conduct, the parties’ direct and indirect contributions, and the parties’ other obligations when deciding whether to make a forfeiture order.

When the court makes a forfeiture order

The court makes a forfeiture order where the marriage has broken down and one party would otherwise benefit from the assets of the marriage, despite their conduct that contributed to the breakdown. The most common situations are listed below in the order they usually arise.

The marriage has broken down due to the adultery of one party, and the other party would otherwise benefit from the assets of the marriage.
The marriage has broken down due to the abuse of one party, and the other party would otherwise benefit from the assets of the marriage.
The marriage has broken down due to the addiction of one party, and the other party would otherwise benefit from the assets of the marriage.
The marriage has broken down due to the financial misconduct of one party, and the other party would otherwise benefit from the assets of the marriage.

What factors the court weighs

The court weighs a number of factors when deciding whether to make a forfeiture order. The most common factors are listed below in the order they usually appear in the application.

The duration of the marriage, which the court weighs heavily in longer marriages.
The parties’ ages, which the court weighs in older or younger parties.
The parties’ health, which the court weighs where one party has a medical condition.
The parties’ earning capacity, which the court weighs where one party has a higher earning capacity.
The parties’ other obligations, which the court weighs where one party has other dependents.
The parties’ conduct, which the court weighs where one party’s conduct contributed to the breakdown.

How the order works

The forfeiture order is made by the court at the divorce hearing. The order is recorded in the court file, and a copy is given to each party. The order is enforceable under the Divorce Act, and the party bound by the order must comply with the terms.

The order can be varied on a material change in circumstances, where the variation is just and fair in light of the facts of the matter. The most common reasons for a variation are listed below in the order they usually appear in practice.

A change in income, including a job loss or a promotion.
A change in the parties’ other obligations, including a new child or a new marriage.
A change in the parties’ health, including a medical condition.

Common Mistakes to Avoid

These are the patterns that leave parties with the wrong outcome.

Skipping the evidence. The court will not make a forfeiture order on bare assertions, and the party seeking the order must prove the conduct.
Assuming the order is automatic. The court weighs the actual facts of the matter, and the order is not automatic.
Skipping the variation. The order can be varied on a material change in circumstances, and the party bound by the order may apply for variation.
Letting the dispute escalate. The right path is to engage with the other party and apply for variation where appropriate.
Quitting the process before the order is granted. The forfeiture is not final until the court grants the order.

Frequently Asked Questions

What is Section 7(3) of the Divorce Act in South Africa?

When does the court make a forfeiture order?

What factors does the court weigh under Section 7(3)?

The court weighs the duration of the marriage, the parties’ ages, the parties’ health, the parties’ earning capacity, the parties’ other obligations, and the parties’ conduct. The court will weigh the actual facts of the matter and arrive at a forfeiture order that is just and fair.

How is the forfeiture order enforced?

The forfeiture order is recorded in the court file, and a copy is given to each party. The order is enforceable under the Divorce Act, and the party bound by the order must comply with the terms.

Can the forfeiture order be varied?

Yes. The order can be varied on a material change in circumstances, where the variation is just and fair in light of the facts of the matter. The most common reasons for a variation are a change in income, a change in the parties’ other obligations, or a change in the parties’ health.

Can the court refuse to make a forfeiture order?

Yes. The court weighs the actual facts of the matter, and the court will not make a forfeiture order where the facts do not justify it. The court will also not make a forfeiture order where the conduct is not proved.

Does Section 7(3) apply to the spouse’s pension interest?

Yes. The forfeiture order can include the spouse’s pension interest, where the court finds that the facts of the matter justify it. The pension interest is treated as an asset of the marriage, and the court can order the spouse to forfeit the pension interest in favour of the other party.

Get help with your divorce. If you need help with a divorce, Otrebski Attorneys’ Family Law team in Sandton can assist. As a 100% women-led firm with a 5-star Google rating, we focus on compassionate, practical legal solutions for families.

Disclaimer. This article provides general information about Section 7(3) of the Divorce Act in South Africa. It is not legal advice and does not replace consultation with a qualified family attorney. The relevant law is set out in the Divorce Act 70 of 1979, which may be amended. Confirm the current position with the Department of Justice and Constitutional Development or speak to a family attorney before relying on anything in this article. Antenuptial agreements in Johannesburg can play a crucial role in protecting the assets of both parties entering a marriage. Couples often choose to set clear terms regarding property and financial matters to prevent disputes in the future. It is advisable to consult a legal professional to ensure that the agreement complies with relevant laws and effectively reflects both partners’ intentions. Understanding divorce act provisions can be complex due to the various factors affecting each case. It is essential to consider how these provisions apply to different circumstances, such as custody arrangements and asset division. Consulting with an experienced attorney will help clarify these aspects and ensure that your rights are protected throughout the process. Divorce laws in South Africa can be complex, with various factors influencing the outcome of custody and asset division. Understanding these laws is essential for anyone navigating the divorce process. Consulting an experienced lawyer can provide invaluable insights tailored to individual circumstances. Divorce expenses in South Africa can vary significantly depending on multiple factors, including the complexity of the case and the duration of the proceedings. It is essential for individuals to budget accordingly and seek financial advice to navigate these potential costs effectively. Understanding these expenses will help ensure that one is better prepared for the financial implications of divorce.