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Can I evict my spouse from the matrimonial home?

I have recently had two cases where a man has sought to evict his spouse from the matrimonial home by bringing an application for an interim protection order against that person in terms of the Domestic Violence Act 116 of 1998. Although I as a legal practitioner act on behalf of either a man or a woman, in both of these specific cases I represented the women.

The outcome of both of these cases was the same. The domestic violence court is the incorrect forum to try and evict your spouse from the matrimonial home. The magistrate in both of these decisions, one of which was in the Wynberg Court, and the other one in the Cape Town Court, were of the opinion that the magistrates’ court is the correct forum to launch an application to evict your spouse from the matrimonial home. In both of the abovementioned cases, the properties were registered in the name of only the man, and the parties were married with an antenuptial contract excluding accrual, and the wife would therefore not have a claim to the property.

South African courts are very reluctant to evict a spouse from the matrimonial home, particularly when there are minor children involved. In my most recent case my client had a two year old child, and was pregnant with her second child. Her partner earned a substantial amount of money, and she was unemployed. Her partner tried to evict her from the house in the protection order court, but was unsuccessful with his application. The court found that the aim of the Domestic Violence Act is to protect an abused person, and that it would not be in the interest of justice for her to be evicted.

It often happens that when one spouse obtains a protection order against the other spouse, the other spouse then shortly thereafter applies for a protection order also. In terms of Section 5(5) of the Domestic Violence Act, the two protection orders can be heard together, and very soon after the second spouse applies for a protection order. The documents which the second spouse to apply for the protection order serves on the first spouse to apply for a protection order, is referred to as a “Notice of Anticipation of Return Date of Protection Order”.

It is important for spouses to realise that courts do not easily evict people, and that even if they do there has to be a just reason for that, and normally the person who is evicted is given a few months to find alternative accommodation.

This article was written by Cape Town divorce lawyer, Peter M Baker

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