Evicting spouse from marital home

Evicting a spouse

Can spouses evict one another from the marital home?

Can one spouse evict the other from the matrimonial home? No. A spouse is not a tenant, even if the marriage is out of community of property and one spouse owns the home outright. Spouses have a duty of support to each other which includes the provision of accommodation and use of household assets. 

Just reason

The court would be very reluctant to evict a spouse from the matrimonial home, even if one spouse went so far as to bring the matter to court. In the hopefully rare event that one spouse wants to evict the other, they must show a just reason for the eviction and provide the other spouse with suitable alternative accommodation, in fulfilment of the duty of support. Any court would be particularly reluctant to grant an eviction if there are minor children involved. The spouse being evicted can approach the court for an interdict to prevent the other spouse barring them from the use of household assets.

What about second homes?

Is there only one marital home? These days it’s not unusual for a couple to own a second home, whether a flat in the city or a beach home for holidays. Does the second home count as a matrimonial home? In a recent case, a husband tried to claim that he was entitled to evict his wife from the holiday home as it was not their “matrimonial home”. The judge disagreed, saying that all homes occupied together as a married couple are classed as matrimonial homes. The term does not apply solely to the “main residence”.

Changing locks

What happens if one spouse, rather than approaching the court for an eviction order, simply takes matters into their own hands and changes the locks, effectively denying the other access? This would amount to spoliation, and the disbarred spouse could ask the court for a “mandament van spolie”. In plain English, this old common law remedy provides relief to anyone deprived of goods without due legal procedure having been followed.

Risk of violence

There are, of course, exceptions to every rule. A woman (or, indeed, a man) can deny a spouse access and even change the locks to keep the spouse out if they feel they are at risk of physical or emotional violence. But this is not eviction. This would require a protection order. The return of one partner after an absence or desertion, perhaps to effect a reconciliation, does not constitute sufficient grounds to deny that person access to the marital home.

However, if one partner is violent towards the other or one has grounds to be fearful of violence, they are entitled to approach the court for a protection order. This will prevent the violent or potentially violent partner from entering the home. This is done by application to the Magistrate’s Court in the area of residence for a protection order against the spouse. There are application forms to complete, including an affidavit, which must contain details about the behaviour of the other person to convince the magistrate to grant a protection order. If someone is in imminent danger and needs urgent protection, an interim protection order will be granted and a court date will be given. 

This is not the same as evicting a spouse.

What does PIE say about evicting a spouse?

The Prevention of Illegal Eviction Act (PIE) makes no mention of evicting a spouse, possibly because, as we have argued, a spouse is not a tenant. The case law mentioned above makes it clear that, in the judge’s opinion, all the homes owned by a couple are considered matrimonial homes.

If you need help with any of these issues

At SD Law, we are experienced family lawyers with the strength of our reputation behind us. If your spouse is trying to evict your from your marital home, or if you are in need of protection from a violent spouse, contact Cape Town attorney Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za to discuss your case in confidence. We are also in Johannesburg and Durban.

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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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