Marriages often go through rough patches and at times, divorce is inevitable. With the number of divorces being on the rise in South Africa, at times couples undergoing divorce find it difficult, if not impossible to continue living together.

A question to consider then is, whether a spouse can evict another spouse from the matrimonial home during divorce proceedings? The general rule is that a spouse is not entitled to evict the other from the matrimonial home. In Hall v Hall (1971) 1 All ER 762 (CA) the court stated that “But I would like to say that an order to exclude one spouse or the other from the matrimonial home is a drastic order. It ought not to be made unless it is proved to be impossible for them to live together in the same house…”

A spouse is also not a tenant and the matrimonial home generally forms part of the joint estate of the parties. Further, spouses have a legal duty to support each other, irrespective of the marital regime.

There are, of course, exceptions to the general rule in terms of which a court may grant an order evicting a spouse from the matrimonial home. Such orders are generally interim orders pending a divorce action. The eviction of a spouse presents challenges to the conventional grounds of eviction, as contemplated in the Prevention of Illegal Eviction from and Unlawful Occupation Act 19 of 1998 (“the PIE Act”), which requirements are predicated on the applicant’s ownership,  the respondent’s unlawful occupation and whether in the court's opinion, it is just and equitable to evict the said person. The PIE Act is silent on the spouses position in eviction applications and a spouse cannot be regarded as an unlawful occupant.  The unreported case of MH v LM (19881/2019) [2020] ZAWCHC 24 is a case in point. The applicant sought relief evicting the respondent from the matrimonial home as the respondent's inappropriate behavior and interference with the applicant’s rights to peaceful occupancy of the property prevented the applicant from remaining on the property.

The Honourable Justice Wille J, was alive to the possibility of the relief sought in this case and held that the relief is very much temporary in nature, pending the outcome of a divorce. The court's rationale for granting an eviction order was premised under the guise of an interim order. In the court’s view, in order to succeed with an eviction application, an applicant must show (i) a prima facie right, (ii) a well-grounded apprehension of irreparable harm if the interim relief is not granted, (iii) the balance of convenience must favour the granting of interim relief and (iv) that there is no other satisfactory remedy. The test that the honourable judge applied is the test that is traditionally applied when determining the granting of an interim relief. This is so, as an application for eviction pending a divorce action is an interlocutory application and the relief required is pendente lite. In considering the test appropriately, Wille J was of the view that because of the respondent's inappropriate behaviour and conduct, the “applicant was obliged to seek interim relief. Had she not proceeded in this fashion, the respondent would have continued to make life at the property intolerable and this, in turn, would have ‘driven her out’ of the property”.

This view of the court infers that the living conditions of the spouses must be unconducive, and the applicant must prove that exceptional circumstances prevail in order to succeed with an eviction order. The court also referred to the case of Buck, 1974 (1) SA 609 (R), cited with approval in Oosthuizen v Oosthuizen 1986 (4) SA 984 (T) at 992l, in which the court stated, inter alia, that: “Where the husband has not left the matrimonial home stronger grounds would have to emerge than when he returns after desertion or periodic absences”.

Having regard to the above, it appears that the courts are inclined to grant an eviction application against a spouse, provided that exceptional grounds are advanced for such an eviction. It is for this reason that most of the authorities in which such orders were granted are in circumstances where one spouse had left the matrimonial home and was primarily being kept out pending divorce.

Section 7(1)(c) of the Domestic Violence Act 116 of 1998 (“the Act”) specially provides that a respondent may be prevented from entering the shared residence, provided that the court may impose this prohibition only if it appears that it will be in the best interest of the complainant. This provision has the same effect as an eviction application in divorce proceedings and is also not readily granted by the courts unless exceptional circumstances are demonstrated to the court. The court considers factors such as the potential prejudice that could be suffered by the respondent, the respondent’s ability to obtain alternative accommodation, and in instances where minor children are involved, the respondent’s access to his or her minor children in the event of an eviction order being granted in terms of the Act.  Importantly, the Act applies to spouses and extends to persons in a domestic relationship.

Although the courts are reluctant to grant an order evicting a spouse from the matrimonial home, obtaining such an eviction order against a spouse pending divorce proceedings is indeed possible. In order to succeed with an eviction application, a spouse must show the impossibility of the parties continuing to live together. In the alternative to launching an eviction application, a spouse subjected to acts of domestic violence is entitled to approach the court for a protection order, which in turn, could prevent the other spouse from entering the shared matrimonial home. In essence, either avenue yields the same result.

Written by Palesa Marobe, Associate, Rams Attorneys