Eviction of a Spouse During Divorce
A spouse, who is not the owner of the matrimonial property, can eject the owner spouse from the property, pending a divorce action.
In the matter of H M v L M (19881/2019) [2020] ZAWCHC 24 (26 March 2020), the Honourable Justice Wille, J ruled in a judgement on 26 March 2020 in the Cape High Court that a spouse, who is not the owner of the matrimonial property, can eject the owner spouse from the property, pending a divorce action.
The facts
The parties were married in 2008 under and in terms of an antenuptial contract which excluded the accrual regime. About (11) years later they decided to leave their matrimonial home on a farm in the Northern Cape and they together moved and lived in Victoria Bay, which became their new matrimonial home. During October 2019, the respondent left the property and returned to the old matrimonial home and from that time until the 5th of December 2019, the applicant lived at the property in peace, whilst the respondent lived in the old matrimonial home.
The Applicant's case
It was the applicant’s case that because she issued out a divorce action against the respondent during November 2019, this triggered certain abusive and inappropriate behaviour by the respondent, which in turn led to threatening and inappropriate messages from the respondent. Further, it was alleged, that the respondent caused security personnel to enter upon the property without the consent of the applicant in order to harass her.
In addition, it was alleged that the applicant received a threatening video from the respondent via ‘Facebook Messenger’, during the beginning of December and then, without prior notification, the respondent stayed for one night, uninvited, at the property. This was all, despite a letter from the applicant’s attorneys requesting the respondent not to attend on the property.
During his stay, it was averred that he threatened, intimidated, swore at and became aggressive towards the applicant. Following upon this behaviour, the applicant sought and obtained an Interim Protection Order (IPO) against the respondent on the 12th of December 2019.
This IPO, seemingly assisted the respondent for a fortnight, as during this period, she lived at the property, in peace. During late December 2019, the applicant’s mother fell ill, and she left to property, in order to assist her ailing mother in Springbok. The property remained vacant during this time.
On the 14th January 2020, and without prior notification and uninvited, the respondent again occupied the property. It was during this time, that the applicant became aware of the respondent’s extramarital affair as she witnessed footage of the respondent cuddling and kissing his girlfriend on a CCTV camera installed in the property.
On the 21st of January 2020, the applicant advised the respondent that she would be returning to the property on the 24th of January 2020 and requested the respondent vacate the property, prior to her occupation. In anticipation, it was alleged, that the respondent re-configured the access codes on the front access gate, so as to prevent the applicant from accessing the property. In direct response to this, arrangements were made with the sheriff of the court for the service of the IPO on the respondent.
In order to run further interference, so it was alleged, the respondent re-configured the codes for access to the garage and simultaneously discontinued the applicant’s access to the alarm system, so that effectively she was unable to enter the property. Thereafter, the respondent reluctantly, allowed the applicant access to the property, but not access to all areas and rooms of the property. An argument ensued and the respondent allegedly verbally abused the applicant. The applicant left the property the following day as the situation with the respondent being on the property became ‘intolerable’ for her.
The following night the respondent’s girlfriend slept at the property and allegedly wore some of the applicant’s clothing of a personal nature. This all culminated in the applicant launching and urgent application which resulted in the IO being granted on the 28th January 2020.
The Respondent's case
The respondent denied that any conduct on his part could have made staying with applicant intolerable and took the position that they were indeed, despite all their differences able to stay together. The Judge was of the view that this was rather far fetched. He further denied that the applicant ever had any cause to be fearful him and averred that he had never ill-treated or verbally abused her.
The respondent also took the view that the property was not the parties matrimonial home, but was in fact their ‘holiday home’. Further, the respondent averred that he did not prevent the applicant from having access to the property, save for the fact that he denied her access to the main bedroom of the property.
The respondent admitted that he was romantically involved with another woman, to which he submitted he was entitled, as the applicant instituted divorce proceedings against him. He conceded that their marriage relationship had broken down irretrievably.
The Law
The applicant took the view that the legal test to be applied, was the test which is traditionally applied when determining the granting of interim relief. This because the application is an interlocutory application and the relief requested is pendent lite.
The respondent took the view that although the application was interlocutory in nature, the effect of the relief as sought, if granted, would be final in nature. Accordingly, the test to be applied, so submitted Mr Olivier for the Respondent, is the test to be applied when granting an interdict for final relief. What was significant was that, should the latter approach be adopted, the ‘balance of convenience’ would not weigh in when the relief is considered.
The appropriate test to be applied was clearly set out in Dempsey [1998] JOL 1936 (SE) at paragraph 5:
‘It should however be realised that the application is merely interlocutory and the effect of the granting thereof is only temporary and not finally decisive of either party’s rights. Therefore the court will normally grant an interdict upon a degree of proof less exacting than that required for the final grant of a final interdict’
In Badenhorst 1964 (2) SA 676 (T), a matter somewhat analogous to this, an interim interdict was granted, preventing a husband from gaining access to a farm, in circumstances where his wife was residing, and the following, inter alia, was held;
‘The wife’s right to eject him must therefore flow from considerations which to a great extent must depend on the merits of the matrimonial dispute’
Judge Wille was of the view that the relief sought by the applicant was very much temporary in nature, pending the outcome of the divorce action scheduled to commence in August 2020, a few months hence. Accordingly, in his view, the applicant, in order to succeed, must show a prima facie right; a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted; that the balance of convenience favours the granting of interim relief and that there is no other satisfactory remedy.
It was submitted that the respondent’s inappropriate behaviour and interference of the applicant’s rights to peaceful occupancy of the property prevented the applicant from remaining on the property. This made it impossible for the parties to continue living together. The property was a matrimonial home and accordingly the applicant enjoyed the legal right to be restored to her peaceful occupation of the property. It would be tantamount to ‘driving her out’ to allow respondent to remain in the property, taking into account his wholly inappropriate behaviour and conduct.
The submission was made on behalf of the applicant that the decided authorities support her right to occupy the property in these circumstances, whether the home was owned solely by the respondent, solely by the applicant, or jointly, and even to the exclusion of the respondent.
In addition, it was submitted by Mr Pincus for the applicant that the conduct and behavior of the respondent by; attempting to rent out the property even though the applicant was living there; threatening that he would fetch homeless people from the street and house them in the property; carrying on an intimate relationship with another woman at the property; sleeping with his girlfriend in the main bedroom; allowing his girlfriend to wear the applicant’s night gown and, telling the applicant to ‘take [her] panties and toothbrush and f….. off’, are all factors that militated in favour of the applicant.
Mr Olivier, for the respondent submitted in the main, that the applicant issued out a divorce action and in her particulars of claim she did not claim maintenance from the respondent. Significantly, she did not allege that she was dependent on the respondent for accommodation and finally, the property was not their matrimonial home, but is a holiday home. In his view, the applicant enjoyed no rights to occupy any other home, other than the matrimonial home which is situated in the Northern Cape. The respondent averred that the applicant must occupy the matrimonial home in the Northern Cape. The main point seemed to be that no allegation has ever been made that the property was converted from a holiday home to the matrimonial home. Judge Wille was not convinced that this conversion contended for was necessary in law.
The respondent’s opposition was largely based on the argument that a spouse, who is not the owner of the matrimonial property, cannot eject the owner spouse from the property, pending a divorce action. The position taken was that the applicant was not entitled to an eviction order and that the trial court would be in a better position to decide these issues, including costs. This issue bears further scrutiny particularly in view of the fact that most of the authorities to which the Judge referred to were decided prior to our constitutional democracy. It was however important for the purposes of this judgment to analyse and consider the current decided authorities, on this issue.
In Buck, 1974 (1) SA 609 (R), cited with approval in Oosthuizen v Oosthuizen 1986 (4) SA 984 (T) at 992I ,and Silverstone, (1953) 1 All ER 556 it was held, inter alia, as follows;
‘In my view she [the wife] has a right to be in the matrimonial home while a petition is pending before this court and this court is entitled to protect that right and ensure that pressure is not put on a wife to abandon her petition by evicting her from the home. In the present case I am satisfied that if I let the husband return to the house I am really driving the wife out’
In McWhirter, (1952) 1 All ER 1311 it was held:
‘In my opinion, therefore, the right of a deserted wife to stay in the matrimonial home proceeds out of an irrevocable authority which the husband is presumed in law to have conferred on her. This accounts for the fact that the husband cannot turn the wife out……..the authority which is thus conferred on her is an authority to stay in the house until the court orders her to go out. This authority flows from the status of marriage, coupled with the fact of separation owing to the husband’s misconduct…..…..If a husband has been guilty of desertion and nothing else, he is entitled to come back at any time asking to be forgiven and she is then bound to receive him. She cannot then keep him out of his house. But if he has, in addition to desertion, been guilty of cruelty or adultery, she is not bound to take him back. She can keep him out of the house. Her possession may then be quite exclusive’
In Hall (1971) 1 All ER 762 (CA) it was held:
‘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…’
In Buck supra, it was, in addition, held that:
‘The question which spouse (if either) owns the property may have some weight in the case of a wife seeking the remedy, but as a rule very little weight. Where the husband has not left the matrimonial home much stronger grounds would have to emerge than when he returns after desertion or periodic absences. Much turns on questions of physical molestation or pressures of other kinds exerted by the husband, and the Court must also consider the motives of the spouses……..This is a case where it is clear that the Respondent is not returning [to the matrimonial home] for the benefit of his wife’s company or to promote a reconciliation………My conclusion is that the petitioner has made out a sufficient case that the presence of respondent in the same house as herself creates an impossible situation with which the petitioner must not be expected to put up.......I consider that there will be little hardship on him if he has to resort to an hotel during the interim…..’
In applying the appropriate test, Wille J was of the view that, inter alia, that because of the respondents 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. The respondent’s behavior and conduct, was in his view, of a sufficient degree to establish a ‘reasonable fear of molestation’ by the respondent, should she return to the property. This in turn, goes directly to the issue of balance of convenience as the trial in the main action is only some (5) months hence. Accordingly, the judge found in favor of the applicant on the issue of balance of convenience.
The respondent argued that the property was not the parties matrimonial home, but it was their holiday home. Accordingly, it was submitted that the applicant fell to be evicted as she enjoyed no protection. It was difficult for the judge to accept that in modern society a married couple are capable, by legal definition, of having only one single matrimonial home. Many married couples have holiday homes, homes in the city and homes in the country which they occupy together because of the marriage relationship between them. These homes, the judge's view, all were matrimonial homes because they occupy these homes together as a married couple.
Order
The Respondent was therefore interdicted and restrained from alienating, entering into any sale of or transferring, disposing of or encumbering, in any manner whatsoever, the immovable property , pending the outcome of the divorce action between the parties, under case number 19881/19 (the divorce action); and ejected from the property, pending the outcome of the divorce action.
For the Applicant:
Adv B Pincus SC with Adv C Small
Instructed by: Maurice Phillips Wisenberg – Cape Town
Attorney: Bertus Preller
For the Respondent:
Adv K Olivier SC with Adv A Heese
Instructed by: Hannes Pretorius Bock & Bryant – Somerset West
Attorney: W Bock
Download the full judgement here:
The facts
The parties were married in 2008 under and in terms of an antenuptial contract which excluded the accrual regime. About (11) years later they decided to leave their matrimonial home on a farm in the Northern Cape and they together moved and lived in Victoria Bay, which became their new matrimonial home. During October 2019, the respondent left the property and returned to the old matrimonial home and from that time until the 5th of December 2019, the applicant lived at the property in peace, whilst the respondent lived in the old matrimonial home.
The Applicant's case
It was the applicant’s case that because she issued out a divorce action against the respondent during November 2019, this triggered certain abusive and inappropriate behaviour by the respondent, which in turn led to threatening and inappropriate messages from the respondent. Further, it was alleged, that the respondent caused security personnel to enter upon the property without the consent of the applicant in order to harass her.
In addition, it was alleged that the applicant received a threatening video from the respondent via ‘Facebook Messenger’, during the beginning of December and then, without prior notification, the respondent stayed for one night, uninvited, at the property. This was all, despite a letter from the applicant’s attorneys requesting the respondent not to attend on the property.
During his stay, it was averred that he threatened, intimidated, swore at and became aggressive towards the applicant. Following upon this behaviour, the applicant sought and obtained an Interim Protection Order (IPO) against the respondent on the 12th of December 2019.
This IPO, seemingly assisted the respondent for a fortnight, as during this period, she lived at the property, in peace. During late December 2019, the applicant’s mother fell ill, and she left to property, in order to assist her ailing mother in Springbok. The property remained vacant during this time.
On the 14th January 2020, and without prior notification and uninvited, the respondent again occupied the property. It was during this time, that the applicant became aware of the respondent’s extramarital affair as she witnessed footage of the respondent cuddling and kissing his girlfriend on a CCTV camera installed in the property.
On the 21st of January 2020, the applicant advised the respondent that she would be returning to the property on the 24th of January 2020 and requested the respondent vacate the property, prior to her occupation. In anticipation, it was alleged, that the respondent re-configured the access codes on the front access gate, so as to prevent the applicant from accessing the property. In direct response to this, arrangements were made with the sheriff of the court for the service of the IPO on the respondent.
In order to run further interference, so it was alleged, the respondent re-configured the codes for access to the garage and simultaneously discontinued the applicant’s access to the alarm system, so that effectively she was unable to enter the property. Thereafter, the respondent reluctantly, allowed the applicant access to the property, but not access to all areas and rooms of the property. An argument ensued and the respondent allegedly verbally abused the applicant. The applicant left the property the following day as the situation with the respondent being on the property became ‘intolerable’ for her.
The following night the respondent’s girlfriend slept at the property and allegedly wore some of the applicant’s clothing of a personal nature. This all culminated in the applicant launching and urgent application which resulted in the IO being granted on the 28th January 2020.
The Respondent's case
The respondent denied that any conduct on his part could have made staying with applicant intolerable and took the position that they were indeed, despite all their differences able to stay together. The Judge was of the view that this was rather far fetched. He further denied that the applicant ever had any cause to be fearful him and averred that he had never ill-treated or verbally abused her.
The respondent also took the view that the property was not the parties matrimonial home, but was in fact their ‘holiday home’. Further, the respondent averred that he did not prevent the applicant from having access to the property, save for the fact that he denied her access to the main bedroom of the property.
The respondent admitted that he was romantically involved with another woman, to which he submitted he was entitled, as the applicant instituted divorce proceedings against him. He conceded that their marriage relationship had broken down irretrievably.
The Law
The applicant took the view that the legal test to be applied, was the test which is traditionally applied when determining the granting of interim relief. This because the application is an interlocutory application and the relief requested is pendent lite.
The respondent took the view that although the application was interlocutory in nature, the effect of the relief as sought, if granted, would be final in nature. Accordingly, the test to be applied, so submitted Mr Olivier for the Respondent, is the test to be applied when granting an interdict for final relief. What was significant was that, should the latter approach be adopted, the ‘balance of convenience’ would not weigh in when the relief is considered.
The appropriate test to be applied was clearly set out in Dempsey [1998] JOL 1936 (SE) at paragraph 5:
‘It should however be realised that the application is merely interlocutory and the effect of the granting thereof is only temporary and not finally decisive of either party’s rights. Therefore the court will normally grant an interdict upon a degree of proof less exacting than that required for the final grant of a final interdict’
In Badenhorst 1964 (2) SA 676 (T), a matter somewhat analogous to this, an interim interdict was granted, preventing a husband from gaining access to a farm, in circumstances where his wife was residing, and the following, inter alia, was held;
‘The wife’s right to eject him must therefore flow from considerations which to a great extent must depend on the merits of the matrimonial dispute’
Judge Wille was of the view that the relief sought by the applicant was very much temporary in nature, pending the outcome of the divorce action scheduled to commence in August 2020, a few months hence. Accordingly, in his view, the applicant, in order to succeed, must show a prima facie right; a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted; that the balance of convenience favours the granting of interim relief and that there is no other satisfactory remedy.
It was submitted that the respondent’s inappropriate behaviour and interference of the applicant’s rights to peaceful occupancy of the property prevented the applicant from remaining on the property. This made it impossible for the parties to continue living together. The property was a matrimonial home and accordingly the applicant enjoyed the legal right to be restored to her peaceful occupation of the property. It would be tantamount to ‘driving her out’ to allow respondent to remain in the property, taking into account his wholly inappropriate behaviour and conduct.
The submission was made on behalf of the applicant that the decided authorities support her right to occupy the property in these circumstances, whether the home was owned solely by the respondent, solely by the applicant, or jointly, and even to the exclusion of the respondent.
In addition, it was submitted by Mr Pincus for the applicant that the conduct and behavior of the respondent by; attempting to rent out the property even though the applicant was living there; threatening that he would fetch homeless people from the street and house them in the property; carrying on an intimate relationship with another woman at the property; sleeping with his girlfriend in the main bedroom; allowing his girlfriend to wear the applicant’s night gown and, telling the applicant to ‘take [her] panties and toothbrush and f….. off’, are all factors that militated in favour of the applicant.
Mr Olivier, for the respondent submitted in the main, that the applicant issued out a divorce action and in her particulars of claim she did not claim maintenance from the respondent. Significantly, she did not allege that she was dependent on the respondent for accommodation and finally, the property was not their matrimonial home, but is a holiday home. In his view, the applicant enjoyed no rights to occupy any other home, other than the matrimonial home which is situated in the Northern Cape. The respondent averred that the applicant must occupy the matrimonial home in the Northern Cape. The main point seemed to be that no allegation has ever been made that the property was converted from a holiday home to the matrimonial home. Judge Wille was not convinced that this conversion contended for was necessary in law.
The respondent’s opposition was largely based on the argument that a spouse, who is not the owner of the matrimonial property, cannot eject the owner spouse from the property, pending a divorce action. The position taken was that the applicant was not entitled to an eviction order and that the trial court would be in a better position to decide these issues, including costs. This issue bears further scrutiny particularly in view of the fact that most of the authorities to which the Judge referred to were decided prior to our constitutional democracy. It was however important for the purposes of this judgment to analyse and consider the current decided authorities, on this issue.
In Buck, 1974 (1) SA 609 (R), cited with approval in Oosthuizen v Oosthuizen 1986 (4) SA 984 (T) at 992I ,and Silverstone, (1953) 1 All ER 556 it was held, inter alia, as follows;
‘In my view she [the wife] has a right to be in the matrimonial home while a petition is pending before this court and this court is entitled to protect that right and ensure that pressure is not put on a wife to abandon her petition by evicting her from the home. In the present case I am satisfied that if I let the husband return to the house I am really driving the wife out’
In McWhirter, (1952) 1 All ER 1311 it was held:
‘In my opinion, therefore, the right of a deserted wife to stay in the matrimonial home proceeds out of an irrevocable authority which the husband is presumed in law to have conferred on her. This accounts for the fact that the husband cannot turn the wife out……..the authority which is thus conferred on her is an authority to stay in the house until the court orders her to go out. This authority flows from the status of marriage, coupled with the fact of separation owing to the husband’s misconduct…..…..If a husband has been guilty of desertion and nothing else, he is entitled to come back at any time asking to be forgiven and she is then bound to receive him. She cannot then keep him out of his house. But if he has, in addition to desertion, been guilty of cruelty or adultery, she is not bound to take him back. She can keep him out of the house. Her possession may then be quite exclusive’
In Hall (1971) 1 All ER 762 (CA) it was held:
‘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…’
In Buck supra, it was, in addition, held that:
‘The question which spouse (if either) owns the property may have some weight in the case of a wife seeking the remedy, but as a rule very little weight. Where the husband has not left the matrimonial home much stronger grounds would have to emerge than when he returns after desertion or periodic absences. Much turns on questions of physical molestation or pressures of other kinds exerted by the husband, and the Court must also consider the motives of the spouses……..This is a case where it is clear that the Respondent is not returning [to the matrimonial home] for the benefit of his wife’s company or to promote a reconciliation………My conclusion is that the petitioner has made out a sufficient case that the presence of respondent in the same house as herself creates an impossible situation with which the petitioner must not be expected to put up.......I consider that there will be little hardship on him if he has to resort to an hotel during the interim…..’
In applying the appropriate test, Wille J was of the view that, inter alia, that because of the respondents 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. The respondent’s behavior and conduct, was in his view, of a sufficient degree to establish a ‘reasonable fear of molestation’ by the respondent, should she return to the property. This in turn, goes directly to the issue of balance of convenience as the trial in the main action is only some (5) months hence. Accordingly, the judge found in favor of the applicant on the issue of balance of convenience.
The respondent argued that the property was not the parties matrimonial home, but it was their holiday home. Accordingly, it was submitted that the applicant fell to be evicted as she enjoyed no protection. It was difficult for the judge to accept that in modern society a married couple are capable, by legal definition, of having only one single matrimonial home. Many married couples have holiday homes, homes in the city and homes in the country which they occupy together because of the marriage relationship between them. These homes, the judge's view, all were matrimonial homes because they occupy these homes together as a married couple.
Order
The Respondent was therefore interdicted and restrained from alienating, entering into any sale of or transferring, disposing of or encumbering, in any manner whatsoever, the immovable property , pending the outcome of the divorce action between the parties, under case number 19881/19 (the divorce action); and ejected from the property, pending the outcome of the divorce action.
For the Applicant:
Adv B Pincus SC with Adv C Small
Instructed by: Maurice Phillips Wisenberg – Cape Town
Attorney: Bertus Preller
For the Respondent:
Adv K Olivier SC with Adv A Heese
Instructed by: Hannes Pretorius Bock & Bryant – Somerset West
Attorney: W Bock
Download the full judgement here: