Who can stay in the holiday home pending divorce?


Court rules that married couples can have more than one matrimonial home

divorce and a holiday home

Divorce and the holiday home

Recently, a case came before the Western Cape High Court in which a woman (the applicant) in the midst of a divorce case (called “pendente lites” – pending litigation) was unable to remain in the couple’s “holiday home”, the home where they had been living as a couple for some months. Shortly before the applicant approached the court, the husband (the respondent) had left the property and moved back to the couple’s original matrimonial home, leaving her to reside in the second home in peace. It was during this period that the applicant filed for divorce.

Interim Protection Order

That peace was disturbed, however, when the respondent decided to return to the second home, uninvited and with no warning. His conduct was such that the applicant applied for an interim protection order (IPO), which was granted for a period of two weeks. Unfortunately, the respondent returned when the IPO expired, while the applicant was away from the property tending to her sick mother. The respondent’s subsequent behaviour made it impossible for the applicant to continue living in the house with him after she returned from the visit.

Does ownership matter?

The couple married out of community of property, without accrual. There is some confusion over the outright ownership of the second home, due to a potential error of legal advice at the time of purchase. The respondent sought to leverage his purported ownership to assert his right over the property as solely his holiday home.

However, the court found in favour of the applicant (the wife). It found that, due to the respondent’s inappropriate behaviour, the applicant was effectively prevented from occupying the property. It ruled that the property should be considered a matrimonial home, regardless of the fact that it was a second home for the couple. Therefore the applicant had a legal right to stay in the property. The respondent’s behaviour was effectively “driving her out”. Furthermore, the applicant’s right to use the property was uninfluenced by whether the property was owned by the respondent, the applicant, or jointly.

Interim order

The wife was granted an interim order, allowing her to stay in the property and prohibiting the husband from selling it until the divorce was finalised. The interim order interdicted the respondent “…from alienating, entering into any sale of or transferring, disposing of or encumbering, in any manner whatsoever, the immovable property situated at […], pending the outcome of the divorce action between the parties, under case number […] (the divorce action).” (Source: SAFLII)

What this means

In real terms, this judgement confirms that if a couple owns more than one home, and during divorce proceedings one spouse moves out of the “regular” matrimonial home, perhaps because the relationship has irretrievably broken down and living together is untenable, he or she has the right to occupy the second home, even if it is primarily used as a holiday home. This right exists regardless of who actually owns the home. In effect, the law recognises both homes as matrimonial homes, regardless of how they have been used previously. And even if the second home belongs to one spouse outright, perhaps as consequence of the matrimonial regime in force, that spouse cannot evict the other and sell the property until the divorce is finalised. This should bring a sigh of relief to spouses in the throes of a divorce case and worried about being evicted. There is enough to contend with during divorce proceedings.

Contact Family Lawyers Cape Town for help

Divorce is complicated at the best of times, but can be particularly complex when there are multiple assets to divide. The dissolution of a marriage out of community of property may appear straightforward, but can in fact have its own intricacies to navigate, as this case shows. Whether you are just contemplating divorce or are further down the line in proceedings, if you want to discuss your case in confidence, contact Simon at Cape Town Divorce Attorneys on 086 099 5146 or email  sdippenaar@sdlaw.co.za. We’ll help you see your options more clearly. 

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The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.

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