The home that a couple lives in during their marriage is called the matrimonial or family home. Sometimes, when couples separate or are getting divorced, one party wants the other spouse to move out.
May one spouse evict another from the home?
The short answer is no. Irrespective of whether you are married in community of property or out of community of property, the general rule is that the spouse who rents or owns the property is not entitled to eject the other spouse from the matrimonial home, nor may the other spouse eject the spouse who rents or owns the property.
Courts are reluctant to grant evictions
South African courts are very reluctant to evict a spouse from the matrimonial home, especially if there are minor children involved. The court would have to take into account whether it would be in the best interests of the children to grant the eviction.
When is a spousal eviction granted?
In order for one spouse to evict another, the foremost spouse must provide a just reason and provide the latter with suitable alternative accommodation.
The provision of alternative accommodation and the use of household assets form part of the duty of support between spouses and a spouse who is subject to ejectment from the matrimonial home or who is barred from using the household assets can approach the court for an interdict to prevent the other spouse from doing so.
Proper legal procedure must always be followed
In the case where one spouse has changed the locks or has denied the other spouse access, the aggrieved spouse can approach the court for a mandament van spolie, which is a common law remedy used by a person who has been dispossessed of goods without following due legal procedure.
Ensure you have expert Family Law help
Our Family Law team have experience with spousal evictions and can advise on the best way forward for partners. For legal assistance with any matters relating to the family, please contact our attorneys.
For legal expertise regarding Family Law, Divorce and Matrimonial Law
Wesley Scheepers wesley@abgross.co.za
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Disclaimer
The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.