The provision of accommodation and household assets forms part of the duty to support and therefore the occupation of the matrimonial home and the use of the household assets are closely related to the duty of support.
During the subsistence of the marriage both spouses are entitled to live in the matrimonial home and to make use of the household assets such as appliances and furniture, irrespective of whether they were married in or out of community of property and irrespective of which spouse owns or rents the matrimonial home or household assets. The latter is a unique and invariable consequence of a marriage.
As a general rule the spouse who rents or owns the property may therefore not eject the other spouse from the matrimonial home without providing him or her with a suitable alternative of accommodation, nor may the other spouse eject the spouse that rents or owns the property from the matrimonial home. The interests of the children as well as matrimonial guilt play an important role. The Constitution of the Republic of South Africa also plays a role in that Section 28 (2) requires that a child’s best interests must be paramount in all matters relating to children. Therefore even the “innocent” spouse can be ejected from the matrimonial home if that will be in the best interests of the child.
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 stop the other spouse from doing so. If the right has already been violated and for example where the other spouse has changed the locks or has denied the other spouse access, the aggrieved spouse can approach the court to invoke what is called in law the mandament van spolie.
I recently handled a matter where one spouse was ejected from the family home without an offer of alternative accommodation. We applied under the Domestic Violence Act, 116 of 1998 for emergency monetary relief pending the institution of a Rule 43 Application and were successful in obtaining monetary relief for the deposit on a new house and the monthly rental instalments.
Written by:
Bertus Preller
Family Law Attorney
Abrahams and Gross Inc.
Divorce Attorney Cape Town South Africa
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