Protection of assets using a trust
The greatest point of dispute in most divorces usually relates to who should move out of the matrimonial home. In court papers one party sometimes tries to evict the other party from the matrimonial home. The courts are sometimes reluctant to allow this though and are sometimes of the view that the divorce court is not the correct forum to try and evict your spouse, and that that is a matter to be dealt with by a civil court rather than in a divorce court.
When trying to evict somebody from a property in a civil matter, the relevant procedure would involve an application under the Prevention of Illegal Evictions from and the Unlawful Occupation of Land Act, 1998. The eviction application must be a separate application and must have a notice of motion which must be give a date when the application will be heard.
After the eviction application has been served, the applicant may bring an “ex parte interlocutory application” authorising a section 4 (2) notice. The section 4 (2) notice would state that notice is given asking for the eviction of the Respondent and all other persons residing at the property from the premises. When determining a date for the hearing of an eviction application sufficient time must be allowed for bringing the ex parte application, for serving the section 4 (2) notice and for the 14 day notice period to expire.
The court order in which the section 4(2) notice was authorised, must be served together with the notice. If the application is postponed in open court on a day of which notice in terms of section 4 (2) was duly given and if postponement in terms of section 4(2) was duly given, and if the postponement is to a specific date, it will not be necessary to serve another section 4 (2) notice in terms of the latter date.
The above act is otherwise referred to as the “PIE “Act, and such applications are usually heard in the Magistrates Court and High Court. Usually a divorce court would only grant an order stating that one party must move out of the house if it is by mutual agreement between the parties. Evicting someone in a divorce is a serious matter and the courts won’t easily allow it. I have in fact had a case before where I opposed an eviction in a divorce matter and the magistrate was of the view that that should rather be under a “PIE” application in a different court.
Does our local divorce court have the authority however to allow an eviction? I would say yes, as the local divorce court is clothed with the same jurisdiction as the High Court when it comes to evictions. The divorce courts are however sometimes reluctant to allow an eviction very easily.
It also happens in divorces that one party owns a property and the other party ends up staying in that property with other family members after the divorce. The party who owns the property then sometimes tries to evict those people from the property. It is not that easy always to evict people though, as appears from all the strict procedural requirements as set out in the “PIE” Act.
One must be very cautious before the divorce is over or after the divorce from allowing an ex-spouse to reside in one of your properties. A fixed property is a major asset and must be protected. Once somebody is living on your fixed property it is not always easy to evict them.
This article was written by Cape Town divorce expert, Peter M Baker
Info on Divorce & fixed Property
Alongside any pension fund investments; the house or flat being lived in is often the biggest asset in a divorce.
- Should I move out of house prior to divorce?
- How to transfer property from husband to wife (or vice versa); whilst still married (ie not getting divorced).
- "Protection" of fixed property using a trust.
- In-laws:
- When you're living with the in-laws, have developed their property & signed surety for their bond.
- When the in-laws sell property to child at reduced rate - impact on divorce (premature inheritance).
- Property clause in divorce settlement.
- Living together after the divorce.
- How to evict your spouse from the matrimonial home.
- Conveyancers conduct the transfer of property ownership from one spouse to another (or to a third party, if relevant).
- Liquidator to sell property & divide proceeds as part of divorce.