Divorce isn't just about dissolving a relationship—it’s also about untangling financial lives that may have been deeply intertwined, even when the law says otherwise. In South Africa, your matrimonial property regime dictates how your assets are divided when a marriage ends. But what happens when the regime you've chosen doesn't lead to a fair outcome?

That’s where Section 7(3) of the Divorce Act comes in. This provision gives the courts the power to redistribute assets in cases where one spouse—often the non-working or lower-earning partner—has made significant contributions to the marriage but is legally entitled to little or nothing under the strict terms of the contract.

This article explains how Section 7(3) works, who it protects, when it applies, and why it's especially important for spouses—most often women—who sacrificed income or career opportunities to support their partner or family.

Understanding Matrimonial Property Regimes in South Africa

Before diving into how Section 7(3) operates, it’s important to understand the framework of matrimonial property regimes in South Africa. These regimes determine how assets and debts are owned and divided during and after marriage.

In Community of Property

If a couple does not sign an antenuptial contract before marriage, they are automatically married in community of property. This means that all assets and debts—whether acquired before or during the marriage—are merged into a single, shared estate.

Key implications:

• Each spouse owns a 50% undivided share in the joint estate.
• All income, savings, and liabilities belong to both spouses equally.

Out of Community of Property Without Accrual

This regime applies when the couple signs an antenuptial contract that specifically excludes the accrual system. Each spouse keeps their assets and debts entirely separate, both during the marriage and on divorce.

Key implications:

• There is no sharing of assets or growth, regardless of contributions.
• Each spouse walks away with what is legally theirs, and nothing more.

This is the regime in which Section 7(3) becomes relevant. It’s designed to provide a measure of fairness when strict asset separation would lead to an unjust result.

Out of Community of Property With Accrual

This regime also requires an antenuptial contract, but allows each spouse to keep their own estate during the marriage. However, any growth in value during the marriage is shared upon divorce. It offers a more balanced approach.

Section 7(3) does not apply to marriages with accrual, since these already allow for redistribution based on the increase in each spouse’s estate.

What Is Section 7(3) of the Divorce Act?

Section 7(3) of the Divorce Act 70 of 1979 empowers a court to redistribute assets at the end of a marriage if certain conditions are met—even when the parties are married out of community of property without accrual.

This provision exists to correct unfair outcomes that may arise when one spouse leaves a marriage with far more wealth, while the other walks away with very little—despite having made meaningful contributions throughout the marriage.

Who Can Use Section 7(3)?

Section 7(3) only applies to:

• Marriages entered into before 1 November 1984, where the parties were married out of community of property without accrual; or
• Marriages entered into after that date if the parties expressly included this option in their antenuptial contract

In other words, this section doesn’t apply to all marriages. But when it does, it can be a powerful tool for restoring balance.

What Does It Allow the Court to Do?

Section 7(3) gives the court discretion to order that one spouse transfer part of their estate to the other at divorce. The court will only make such an order if it is satisfied that it would be just and equitable, considering all the circumstances.

This provision does not override the terms of an antenuptial contract—but it gives the court flexibility to address inequality that arises from the strict application of those terms.

When and Why Section 7(3) Is Used

Section 7(3) was introduced to address a specific and often painful reality: that in some marriages, one spouse walks away financially secure while the other—usually the lower-earning or non-working partner—walks away with nothing. This is especially true in marriages where a spouse:

• Did not work for much of the marriage
• Sacrificed their career to care for children or manage the household
• Supported their spouse emotionally, domestically, or administratively
• Was married out of community of property without accrual

Without this provision, courts would be forced to apply the terms of the antenuptial contract rigidly—even if the result was clearly unfair.

Why It Matters

For many non-working spouses, especially women, the lack of access to financial resources after divorce is not a reflection of laziness or irresponsibility—it’s the result of a deliberate family arrangement. Section 7(3) acknowledges this by allowing the court to consider non-financial contributions when deciding whether a redistribution order should be made.

These might include:

• Raising children
• Managing the household
• Acting as a homemaker so the other spouse could advance their career
• Contributing to a spouse’s business without formal compensation

Section 7(3) recognises that these contributions, while not reflected in a bank account, often enable the other spouse to accumulate wealth—and that justice sometimes requires that wealth to be shared.

How Courts Apply Section 7(3) 

Section 7(3) doesn’t guarantee a redistribution of assets—it gives the court the discretion to make such an order if it’s just and equitable. That means every case is evaluated on its own facts, and the outcome depends heavily on the strength of the evidence presented.

What the Court Considers

When asked to apply Section 7(3), the court will look at factors such as:

• The duration of the marriage
• Each spouse’s financial and non-financial contributions
• The needs and earning capacity of both parties going forward
• Whether one spouse sacrificed economic opportunities for the benefit of the family
• Any agreements made between the parties, including the antenuptial contract

The key question the court asks is: Would it be unfair or unjust to allow one spouse to retain all the wealth acquired during the marriage?

What Must Be Proven?

The spouse seeking redistribution under Section 7(3) must show:

• That their contributions (whether financial or not) were significant
• That they enabled or supported the accumulation of wealth in the other spouse’s estate
• That it would be inequitable to walk away without compensation

Courts require concrete evidence—vague claims of “support” or “partnership” are not enough. It’s often helpful to have a paper trail, witness statements, or documentation that proves your role in the marriage and how it allowed the other party to grow their estate.

Legal Support Is Critical

Because the application of Section 7(3) is not automatic, and the stakes are high, having experienced divorce attorneys is essential. A well-prepared case that clearly sets out your contributions and financial position can make the difference between leaving the marriage with security—or with nothing at all.

What a Non-Working Spouse May Be Entitled To

One of the most common concerns in divorce is: “What happens if I didn’t earn an income, but supported the marriage in other ways?”

For spouses married out of community of property without accrual, the law typically says: what’s yours is yours, and what’s mine is mine. But under Section 7(3), the court has the power to soften that line if one spouse’s contributions—though not financial—were fundamental to the success of the other.

No Guaranteed Share, but a Path to Fairness

Section 7(3) doesn’t guarantee a 50/50 split. There’s no automatic entitlement like there is in a marriage in community of property. But it gives the court the authority to redistribute a portion of the wealth from the financially stronger spouse to the other if it finds that it would be unjust not to.

This means a non-working spouse may be awarded:

• A percentage of the other spouse’s estate, determined by the court
• A specific asset or sum of money
• A settlement that reflects their contribution and needs, rather than strict ownership

It’s About Equity, Not Equality

The purpose of Section 7(3) is not to equalise estates, but to ensure that the spouse who supported the marriage—often by raising children or managing the home—is not left at a severe financial disadvantage simply because they weren’t the breadwinner.

If you stayed home, worked part-time, or stepped back professionally to support your partner’s ambitions or your family’s needs, this provision may be the only legal mechanism to recognise and compensate that sacrifice.

Penalties and Problems – Hiding Assets During Divorce

Whether you’re seeking a redistribution of assets under Section 7(3) or going through any type of divorce, full financial disclosure is not optional. Each spouse is legally required to disclose all assets, income, and liabilities. Hiding or undervaluing assets undermines the process—and courts do not take it lightly.

Why Full Disclosure Matters

Section 7(3) is a discretionary remedy. To determine what’s fair, the court must have an accurate picture of both spouses’ financial positions. That includes:

• Property
• Investments
• Business interests
• Trusts and offshore assets
• Retirement funds and pensions

Any attempt to conceal assets can result in:

• Adverse cost orders
• A larger portion of assets being awarded to the honest party
• Contempt of court proceedings, in serious cases

How Hidden Assets Are Uncovered

If one party suspects the other of hiding assets, attorneys can request:

• Bank records
• Business financials
• Deeds office searches
• Lifestyle audits
• Affidavits from accountants or financial advisors

Where necessary, the court can issue subpoenas or appoint forensic experts to trace undisclosed wealth.

Trying to hide assets is not only unethical—it’s legally risky. If you are the financially vulnerable spouse, you have the right to a transparent process, and the courts have the power to ensure it.

Divorce, Mediation, and Strategic Negotiation

Not every divorce ends in a drawn-out court battle. In many cases, couples are able to reach agreement through mediation or negotiated settlement—even when complex financial issues like Section 7(3) are involved.

But negotiation does not mean giving up your rights. For spouses who are financially dependent, or who made significant non-financial contributions during the marriage, it's essential to enter the process from an informed and protected position.

How Mediation Can Support a Fair Outcome

Mediation is a voluntary, structured process in which a neutral third party helps divorcing spouses reach agreement. It can be especially helpful where:

• There's a desire to avoid litigation
• Children are involved
• There’s mutual respect, but unequal financial power

If you're considering raising a Section 7(3) claim, you can still mediate, but with the support of an experienced attorney who understands what’s at stake.

Why Strategic Legal Advice Is Key

Even in mediation, it’s not enough to “feel” like an agreement is fair. You need to understand:

• Whether you're entitled to request redistribution under Section 7(3)
• What evidence supports your position
• What your financial position will look like post-divorce

Legal strategy ensures you don’t settle for less than you're entitled to—or agree to terms that don’t reflect your contributions.

Van Deventer and Van Deventer Inc. – Divorce Attorneys

Divorce is not always a clean financial split—especially when one spouse has shouldered the emotional, domestic, or caregiving responsibilities while the other built wealth. For spouses married out of community of property without accrual, the law might seem harsh at first glance—but Section 7(3) of the Divorce Act offers a critical safeguard.

It gives courts the flexibility to recognise real-life contributions, not just bank balances, and to redistribute assets where fairness demands it. But the success of a claim under Section 7(3) depends on timing, evidence, and experienced legal support.

Whether you're preparing for divorce or already facing proceedings, it’s worth finding out where you stand. With the right guidance, you can protect what you’ve built—and secure what you need to rebuild.

At Van Deventer and Van Deventer Inc., we work closely with clients—particularly women in financially unequal marriages—who need strong, clear guidance through:

• Assessing whether Section 7(3) applies to their marriage
• Building a compelling redistribution case based on contributions and need
• Securing full financial disclosure from the other party
• Representing them in court, mediation, or settlement negotiations
• Protecting their dignity, financial future, and children’s interests

If you are preparing to file for divorce or responding to proceedings, we’re here to help you approach every step from a position of strength, not uncertainty.

Reach out for a confidential consultation. We’ll help you understand your rights, assess your options, and move forward with clarity and confidence.