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.
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.
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 spouse can be denied access to keep the other 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 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. 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.
Seek the guidance of an expert family attorney
SD Law is a firm of 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 Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.