The end of a relationship often raises one of the most difficult and emotionally charged questions: who stays in the family home, and who must leave? Whether you’re dealing with separation from marriage, a pending divorce, or are in the middle of property disagreements, it’s important to understand your legal rights and obligations—particularly when it comes to occupation, ownership, and eviction.

This article explores everything you need to know about resolving family home disputes during or after separation in South Africa. From occupation rights and eviction laws to how your marriage contract impacts your claim, we’ll break down each part of the law in plain language.

For a broader understanding of how property is treated in marriage, visit Marriage & Matrimonial Property.
If you’re currently going through separation or divorce, we recommend starting with our Separation & Divorce Services.

Understanding Separation in South African Law

The law in South Africa does not legally recognise separation as a distinct marital status. You are either married or divorced. However, separation from marriage—where spouses live apart, either temporarily or permanently—is common, and the law makes provisions for resolving disputes that arise during this period.

What does separation mean legally?

• You are still legally married, even if you live in separate homes.
• Your property regime (e.g. in community of property or with accrual) remains in place until a divorce is granted.
• Any agreements made during separation, such as one spouse moving out, should ideally be documented in a separation agreement.

A separation agreement can set out temporary living arrangements, financial support, and responsibilities for children until the divorce is finalised.

Who Owns the Family Home?

Understanding ownership is critical to resolving who has the legal right to occupy or control the property after separation.

Ownership depends on:

• The marriage contract (in or out of community of property)
• Whose name is on the title deed
• Whether the property is considered part of the joint estate
• Whether the home was inherited, gifted, or purchased during the marriage

Scenarios to consider:

• In community of property: The home is jointly owned by both spouses—even if the title deed is in only one name.
• Out of community of property with accrual: The growth in the estate during the marriage may be shared, including the value of the property.
• Out of community without accrual: Each spouse retains their own property unless agreed otherwise.

Can My Husband Evict Me from His House?

This is one of the most common questions asked during separation: Can you be forced to leave the home if it’s not in your name? The answer depends on ownership, marital regime, and your rights of occupation.

If the home is jointly owned -

Neither spouse can evict the other without a court order. Co-owners have equal rights to occupy the home until the court rules otherwise.

If the home is registered in one spouse’s name -

The non-owner spouse may still have a legal right to remain, particularly if:

• The couple is married in community of property
• The house is part of the joint estate
• There are children involved and it serves as the primary residence
• The spouse contributed to the household financially or otherwise

In most cases, a court must decide whether eviction is justified.

Evicting a Spouse from the Matrimonial Home

Evicting your spouse from the family home is not a simple matter, even if you are the registered owner. You will need to apply for an eviction order, and the court will weigh a number of factors.

The court will consider:

• Whether the applicant is the lawful owner or tenant
• If the other spouse has legal or personal rights to occupy the home
• The marital property system
• The needs and best interests of any children involved
• Whether alternative accommodation is available
• Any instances of domestic violence, intimidation or harassment

In high-conflict cases or where safety is a concern, the Protection from Harassment Act or Domestic Violence Act may be used to apply for an interim protection order, which can include a residence clause forcing one party to vacate the property.

Exclusive Use and Occupation Rights During Divorce

While divorce proceedings are underway, the court may grant exclusive use of the matrimonial home to one spouse. This is not the same as awarding ownership—it simply means that one party is allowed to live in the house while the divorce is pending, and the other must vacate.

How do you apply for exclusive occupation?

• You must file a Rule 43 application in the High Court (or Rule 58 in the Magistrates' Court) as part of the divorce process.
• The application should explain why exclusive use is necessary—often due to conflict, safety concerns, or the needs of minor children.
• The court may grant temporary occupation to protect the interests of the children or to stabilise the situation.

This arrangement remains in place until the divorce is finalised and a permanent settlement is reached.

What Happens When There’s No Formal Agreement?

Without a clear separation agreement, conflict over occupation and access to the home can escalate. In the absence of legal structure, neither party has defined responsibilities or rights, which can lead to:

• Unilateral decisions (like changing the locks)
• Disputes over who pays the bond or rent
• Constant arguments about who is entitled to remain

A properly drafted separation agreement can clarify:

• Who will remain in the house during separation
• Who is responsible for household expenses
• How and when decisions about the property will be made

This can help avoid unnecessary litigation and protect both parties’ rights.

Learn more about your options during separation at our Separation & Divorce page.

Selling the Family Home - Voluntary and Forced Sales

Sometimes, keeping the home is not financially viable or practical—especially when neither party can afford to maintain it alone. In this case, the property may need to be sold and the proceeds divided.

Voluntary Sale

• Both parties agree to sell the property
• They can jointly appoint an agent
• Proceeds are divided according to their marital regime or as per the divorce order

Forced Sale via Court Order

If one spouse refuses to sell or blocks the process, the other may apply to court for a forced sale.

• The court may order the house to be sold if co-ownership is no longer workable
• If spouses are co-owners, an application under actio communi dividundo may be used to divide the jointly owned property

The Role of Children in Determining Occupation

South African law places strong emphasis on the best interests of the child. When children are involved, decisions about who stays in the home are often influenced by:

• Stability and continuity of schooling and social environment
• The primary caregiver's ability to meet the child’s needs
• Whether removing the child from the home would cause harm

The court may grant the primary caregiver temporary or permanent occupation, even if they are not the legal owner, in order to prioritise the child’s emotional and developmental needs.

How Separation Agreements Can Prevent Conflict

A written separation agreement helps to pre-empt disputes over the family home by clearly stating:

• Who remains in the home (and for how long)
• Whether the property will be sold or retained
• Who pays for rates, utilities, and upkeep
• What happens if either party enters a new relationship or remarries

While not mandatory, separation agreements can be made an order of court for enforcement, particularly in high-value divorces or new divorce laws in South Africa that seek to streamline contentious disputes.

New Divorce Laws in South Africa and Property Rights

South Africa continues to evolve its family law through legislation and case law. Recent developments affecting property disputes post-separation include:

• Increased recognition of unregistered customary marriages and their implications on matrimonial property
• Expanded focus on gender equality, particularly where one spouse is economically disadvantaged
• The growing importance of cohabitation agreements, especially for couples who never formally married but share property

While these changes don’t alter the basic rules of property ownership, they do influence how courts interpret fairness, especially where minor children or dependent spouses are involved.

How Is Eviction Handled Legally

If one party refuses to vacate the home, the other must follow formal legal processes. You cannot remove a spouse from the home without:

1. A court order, and
2. Proper legal grounds

The eviction process includes:

• Serving a notice of intention to evict
• Proving that the person has no legal right to remain
• Showing that alternative accommodation is available
• Ensuring that no children or vulnerable persons are left homeless without support

The court may also consider whether domestic violence or harassment has occurred—this can strengthen a claim for eviction under the Domestic Violence Act.

What Happens After the Divorce Is Finalised?

Once a divorce is finalised, the court may:

• Grant exclusive or sole ownership of the home to one spouse
• Order the home to be sold and the proceeds divided
• Enforce an existing agreement (e.g., one party buys out the other)

The divorce decree may also confirm who stays, who pays, and who owns the property. If the house was held in joint names, a conveyancer will be required to transfer ownership.

For a detailed overview of how marital property is divided, explore our Marriage & Matrimonial Property page.

Van Deventer & Van Deventer Inc. – Divorce Attorneys

Disputes over the family home are often the most painful and complex part of a separation. They involve deep emotional ties, financial risk, and significant legal implications—particularly where children are involved.

At Van Deventer and Van Deventer Inc., our attorneys in Johannesburg approach these cases with precision, care, and legal clarity. We understand the intricacies of:

• Marital property law
• Occupation and eviction rights
• Protection orders
• Separation agreements
• Post-divorce property transfers

Whether you’re facing resistance from a spouse, unsure about your rights to stay in your home, or need assistance with protecting your share of the property, our team is here to guide you through every step.

Contact us for legal support you can trust—because where you live, and how you live, matters.