Wife Evicted From Main Bedroom During Divorce
LWR V NBR, unreported, case number 1171/2021 Western Cape High Court.
In this application before Justice Wille, the Applicant brought and application to evict his wife, the Respondent from the master bedroom.
The Facts
In February 2019, on the Respondent’s own version, she decided to move out of the master bedroom. From that date, the parties had a “peaceful coexistence” at the matrimonial home, having agreed that the Applicant would sleep in the master bedroom and the Respondent would sleep in the guest bedroom, albeit making use of the master bathroom and dressing room. In late November 2020, the parties attempted to mediate and settle their divorce and, although the parties came very close to settling, the Respondent’s settlement demands were, according to the Applicant, unreasonable, and he accordingly refused to accede thereto.
Since the mediation, and failed settlement at the end of November 2020, the Respondent has “drawn the battle lines” by conducting herself as follows, namely:
The Respondent elected, in her Answering Affidavit, to advise the court of her wholly unsubstantiated belief that the Applicant has an “inappropriate” relationship with his daughter – which has been dealt with and dispelled by the Clinical Psychologist to which she did not make reference – and proceeded to provide details of the Applicant’s alleged “sexual assault” of herself.
Adv Pincus SC, who argued on behalf of the Applicant argued that the inclusion of such material was clearly irrelevant, and an analogy could be drawn to the inclusion of irrelevant defamatory material in court proceedings, and which because they were irrelevant were considered to be malicious, and to which the defence of privilege would not apply. Similarly, the allegations were irrelevant (also defamatory) and, accordingly, the inference had to be drawn that they were malicious. This malice was, it was submitted, relevant to the exercise of the Court’s discretion in relation to the Respondent’s future use of the master suite. It was clear that the Applicant could not be expected to tolerate the Respondent’s presence in the master suite and, as the “battle lines” were now, very clearly, “drawn” by the Respondent, it was impossible to imagine how a shared use arrangement could be feasible. Furthermore, it was argued that since the Respondent’s use of the bathroom and dressing room would not have been able to be “policed”, the Respondent could enter the Applicant’s bedroom at any time of the day or night and could make the Applicant’s life exceedingly difficult by using her access thereto as a means of further harassment.
The Law
In Dempsey v Dempsey, [1998] JOL 1936 (SE), the wife, inter alia, sought confirmation of an order ejecting her husband from the matrimonial home, pending the outcome of a divorce action, the Court stated as follows:
“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. Further support for this view is found in the South African Law of Husband and Wife by Hahlo 5ed at 434 where it is stated:
“To obtain an interdict pendente lite, the Applicant need not show that there is a balance of probabilities in his favour; it is sufficient if he establishes a prima facie case.”
In order for the Applicant to obtain the relief sought in the application, pendente lite, the Applicant is required to show:
a prima facie right;
In determining whether the Court should exercise its overriding discretion in favour of the grant of interim relief, the abovementioned factors are not to be considered in isolation, but rather in conjunction with one another.
A. Prima facie right
The requirement of a prima facie right includes consideration of the facts, provided by the Respondent in contradiction to the Applicant’s case, whether those facts place serious doubt on the Applicant’s case, in which event the Applicant cannot succeed, or if they are merely an unconvincing explanation, in which event the Applicant’s right will be protected.
A parallel can be drawn between a spouse’s right to reside in the matrimonial home and a spouse’s right to occupy a particular portion of the matrimonial home, such as a bedroom.
Although the Respondent referred to the fact that the matrimonial home was jointly owned by the parties, in equal and undivided half shares, the ownership of a matrimonial property is, irrelevant in determining whether or not a spouse should be ejected from the matrimonial home or, indeed, a portion of the matrimonial home.
In Badenhorst v Badenhorst, 1964 (2) SA 676 (T) Vieyra J granted an interim interdict, preventing a husband from having access to a farm where the wife was residing, and held inter alia as follows: t 678H:
"If a prima facie case has been made out… one establishing a reasonable fear of molestation should she return to her own farm, then, in view of all the circumstances… the Court is entitled to protect a person in the applicant’s position by preventing the husband from having access to the farm.” (underlining supplied);
and
at 679D:
“The wife’s right to eject him [the husband] must therefore flow from considerations which to a great extent must depend on the merits of the matrimonial dispute.” (underlining supplied).
In Buck v Buck, 1974 (1) SA 609 (R), cited with approval in Oosthuizen v Oosthuizen 1986 (4) SA 984 (T) at 992I and by the Western Cape High Court in the reported Judgement of H M v L M (19881/2019) [2020] ZAWCHC 24, Greenfield J referred to and cited with approval the English decision in Silverstone v Silversto, (1953) 1 All ER 556, cited with approval in H M v L M which the wife applied for and obtained an injunction, preventing her husband from using the matrimonial home, which he owned and in which Pearson J (as he then was) stated;
“The wife is not without rights in the matrimonial home even though it belongs to the husband… 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 Buck supra, Greenfield J went on to state that (we invite the Court to substitute the conduct of the Respondent, in returning to the bedroom, with that of the husband referred to below and who returned to the matrimonial home):
“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. The returning errant husband may think that his return will give him a tactical advantage in the future action, while the petitioning wife… may be thought to be looking for a tactical advantage in ejecting her husband… 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. Finally, viewing the matter in the light of a balance of convenience… having regard to his prolonged absence in the past I consider that there will be little hardship on him if he has to resort to an hotel during the interim…”
In the case of Lovell v Lovell, 1980 (4) SA 90 (T) Van Der Walt J (as he then was), held that the Court has to determine “an equitable solution to a problem created not by the Court but by the parties themselves: they were to blame for their situation in which they found themselves and, in seeking relief from the Court, they should not complain should the Court make an order which did not suit either the one or the other, or inconvenienced the one or the other.”.
In Lovell supra, the learned Judge went on to state that “…the Court in these cases should have regard to the interest of the children which was paramount, the Court being upper guardian of the children, and the children’s interest should play a great part in determining what solution the Court eventually arrived at.”
The undisputed facts in this matter were as follows, namely:
In the light of the above, the Applicant submitted that:
B. Apprehension of irreparable harm
It was argued that should the relief sought by the Applicant not be granted, and should the Respondent be allowed the continued use of the master suite, the Applicant would suffer irreparable harm as the Respondent would continue to make life at the matrimonial home intolerable and would effectively “drive him out” of the master bedroom, denying him access to the room in which he had slept for the past 24 months, H M v L M supra.
Furthermore, should the relief sought by the Applicant not be granted, the child’s stability would be compromised, as the living conditions would continue to be intolerable, and the need for her to learn to sleep alone, in her own bed, would remain unchanged.
C. Balance of convenience
It was submitted that the balance of convenience was in the Applicant’s favour based on the facts stated above as well as the fact that:
D. No other satisfactory remedy
No other satisfactory remedy was, available to the Applicant as the Respondent had steadfastly refused to vacate the master bedroom and has even gone so far as to suggest a ridiculous “bedroom care and contact regime” to enable her to continue to upset the parties’ living arrangements, notwithstanding the fact that her suggestion was entirely to the detriment of the parties’ minor child.
It was submitted that, the Applicant, who had been sleeping in the master bedroom for a period of 24 months, should not have to move out of that bedroom on the whim of the Respondent who was clearly, as submitted, attempting to gain a tactical advantage in the divorce action.
Order
The Applicant succeeded with the application and the Respondent was evicted from the main bedroom. Furthermore, and due to the Respondent’s inappropriate conduct, a cost order was granted against the wife, including the costs of two counsel.
Case Summary, by:
Bertus Preller
Family Law Attorney
Maurices Phillips Wisenberg - Cape Town
In this application before Justice Wille, the Applicant brought and application to evict his wife, the Respondent from the master bedroom.
The Facts
In February 2019, on the Respondent’s own version, she decided to move out of the master bedroom. From that date, the parties had a “peaceful coexistence” at the matrimonial home, having agreed that the Applicant would sleep in the master bedroom and the Respondent would sleep in the guest bedroom, albeit making use of the master bathroom and dressing room. In late November 2020, the parties attempted to mediate and settle their divorce and, although the parties came very close to settling, the Respondent’s settlement demands were, according to the Applicant, unreasonable, and he accordingly refused to accede thereto.
Since the mediation, and failed settlement at the end of November 2020, the Respondent has “drawn the battle lines” by conducting herself as follows, namely:
- On 22 December 2020 (three weeks after mediation), she instituted legal proceedings against the Applicant in the State of New York, dealing with the central issue which was also pending currently before the Western Cape High Court in the divorce (namely the validity of a post nuptial agreement concluded between the parties), such litigation having been before the Western Cape High for a period of three years – the New York summons having been served on the Applicant on Christmas Eve, 24 December 2020;
- Five days later, and on 27 December 2020, the Respondent made the unilateral decision to move back into the master bedroom with the parties’ minor child without permission of, and without telling, the Applicant.
- On 9 January 2021, when the Applicant returned from holiday, the Respondent refused to vacate the master bedroom upon the Applicant’s request.
- On 12 January 2021, the Respondent received a letter from the Applicant’s attorneys in which they demanded that she vacate the master bedroom, which she ignored.
- On 14 January 2021, the Respondent changed her attorneys of record for the third time and briefed different counsel.
- On 28 January 2021, the Respondent received the Applicant’s application papers, which included a short report by a Clinical Psychologist, who termed the Respondent’s return to the master bedroom as a “manoeuvre”, yet she persisted in her refusal to vacate the master bedroom;
- On 3 February 2021, the Respondent deposed to an Answering Affidavit in which she included irrelevant allegations relating to “an inappropriate relationship with [the parties’] and stating that she (the Respondent) was “repeatedly sexually abused and groomed by the Applicant when [she] was a minor (15 years of age)”.
The Respondent elected, in her Answering Affidavit, to advise the court of her wholly unsubstantiated belief that the Applicant has an “inappropriate” relationship with his daughter – which has been dealt with and dispelled by the Clinical Psychologist to which she did not make reference – and proceeded to provide details of the Applicant’s alleged “sexual assault” of herself.
Adv Pincus SC, who argued on behalf of the Applicant argued that the inclusion of such material was clearly irrelevant, and an analogy could be drawn to the inclusion of irrelevant defamatory material in court proceedings, and which because they were irrelevant were considered to be malicious, and to which the defence of privilege would not apply. Similarly, the allegations were irrelevant (also defamatory) and, accordingly, the inference had to be drawn that they were malicious. This malice was, it was submitted, relevant to the exercise of the Court’s discretion in relation to the Respondent’s future use of the master suite. It was clear that the Applicant could not be expected to tolerate the Respondent’s presence in the master suite and, as the “battle lines” were now, very clearly, “drawn” by the Respondent, it was impossible to imagine how a shared use arrangement could be feasible. Furthermore, it was argued that since the Respondent’s use of the bathroom and dressing room would not have been able to be “policed”, the Respondent could enter the Applicant’s bedroom at any time of the day or night and could make the Applicant’s life exceedingly difficult by using her access thereto as a means of further harassment.
The Law
In Dempsey v Dempsey, [1998] JOL 1936 (SE), the wife, inter alia, sought confirmation of an order ejecting her husband from the matrimonial home, pending the outcome of a divorce action, the Court stated as follows:
“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. Further support for this view is found in the South African Law of Husband and Wife by Hahlo 5ed at 434 where it is stated:
“To obtain an interdict pendente lite, the Applicant need not show that there is a balance of probabilities in his favour; it is sufficient if he establishes a prima facie case.”
In order for the Applicant to obtain the relief sought in the application, pendente lite, the Applicant is required to 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 the Applicant has no other satisfactory remedy.
In determining whether the Court should exercise its overriding discretion in favour of the grant of interim relief, the abovementioned factors are not to be considered in isolation, but rather in conjunction with one another.
A. Prima facie right
The requirement of a prima facie right includes consideration of the facts, provided by the Respondent in contradiction to the Applicant’s case, whether those facts place serious doubt on the Applicant’s case, in which event the Applicant cannot succeed, or if they are merely an unconvincing explanation, in which event the Applicant’s right will be protected.
A parallel can be drawn between a spouse’s right to reside in the matrimonial home and a spouse’s right to occupy a particular portion of the matrimonial home, such as a bedroom.
Although the Respondent referred to the fact that the matrimonial home was jointly owned by the parties, in equal and undivided half shares, the ownership of a matrimonial property is, irrelevant in determining whether or not a spouse should be ejected from the matrimonial home or, indeed, a portion of the matrimonial home.
In Badenhorst v Badenhorst, 1964 (2) SA 676 (T) Vieyra J granted an interim interdict, preventing a husband from having access to a farm where the wife was residing, and held inter alia as follows: t 678H:
"If a prima facie case has been made out… one establishing a reasonable fear of molestation should she return to her own farm, then, in view of all the circumstances… the Court is entitled to protect a person in the applicant’s position by preventing the husband from having access to the farm.” (underlining supplied);
and
at 679D:
“The wife’s right to eject him [the husband] must therefore flow from considerations which to a great extent must depend on the merits of the matrimonial dispute.” (underlining supplied).
In Buck v Buck, 1974 (1) SA 609 (R), cited with approval in Oosthuizen v Oosthuizen 1986 (4) SA 984 (T) at 992I and by the Western Cape High Court in the reported Judgement of H M v L M (19881/2019) [2020] ZAWCHC 24, Greenfield J referred to and cited with approval the English decision in Silverstone v Silversto, (1953) 1 All ER 556, cited with approval in H M v L M which the wife applied for and obtained an injunction, preventing her husband from using the matrimonial home, which he owned and in which Pearson J (as he then was) stated;
“The wife is not without rights in the matrimonial home even though it belongs to the husband… 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 Buck supra, Greenfield J went on to state that (we invite the Court to substitute the conduct of the Respondent, in returning to the bedroom, with that of the husband referred to below and who returned to the matrimonial home):
“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. The returning errant husband may think that his return will give him a tactical advantage in the future action, while the petitioning wife… may be thought to be looking for a tactical advantage in ejecting her husband… 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. Finally, viewing the matter in the light of a balance of convenience… having regard to his prolonged absence in the past I consider that there will be little hardship on him if he has to resort to an hotel during the interim…”
In the case of Lovell v Lovell, 1980 (4) SA 90 (T) Van Der Walt J (as he then was), held that the Court has to determine “an equitable solution to a problem created not by the Court but by the parties themselves: they were to blame for their situation in which they found themselves and, in seeking relief from the Court, they should not complain should the Court make an order which did not suit either the one or the other, or inconvenienced the one or the other.”.
In Lovell supra, the learned Judge went on to state that “…the Court in these cases should have regard to the interest of the children which was paramount, the Court being upper guardian of the children, and the children’s interest should play a great part in determining what solution the Court eventually arrived at.”
The undisputed facts in this matter were as follows, namely:
- in February 2019, the Respondent made the decision to move out of the master bedroom as she “could not continue to share a bed with the applicant”;
- the Respondent continued to sleep in the guest bedroom for a period of approximately 24 months;
- on 27 December 2020, when the Applicant left the matrimonial home to go on holiday, the Respondent made the decision to move back into the master bedroom, without the Applicant’s knowledge nor consent and without even telling him;
- on 9 January 2021, the Applicant returned to the matrimonial property after holiday, to find that the Respondent had moved back into the master bedroom, along with the minor child;
- the Respondent refused to move out of the master bedroom when requested by the Applicant to do so; and
- the Respondent has continued to sleep in the master bedroom, with
- The child, to date of the court application.
In the light of the above, the Applicant submitted that:
- the Applicant has the right to have his occupation of the master bedroom restored;
- the Respondent’s actions, in returning to the master bedroom after a period of 24 months, were clearly motivated by a desire to secure “a tactical advantage in the future action” (divorce) and were clearly “not for the benefit of [the Applicant’s] company or to promote a reconciliation”;
- if the Respondent were allowed access to the master suite, this would create “an impossible situation” for the Applicant and would effectively “drive him out of it” (the master suite);
- the Respondent’s conduct as aforesaid was sufficient to establish a reasonable fear of harassment, should she be allowed access to the master suite;
- due to the Respondent’s prolonged absence from the master bedroom
- in the past, she would suffer no hardship if required to move into the guest bedroom where she had been sleeping and to place her belongings elsewhere in the enormous matrimonial home;
- it would be in the child’s best interests for the status quo to be restored and for the Applicant to return to the bedroom where he had been sleeping for the past 24 months;
- it would be in the child ’s best interests for the parties not to share the master suite, as the situation had clearly become intolerable; and finally
- the Court should exercise its discretion in the Applicant’s favour and not allow the Respondent access to the master suite at all.
B. Apprehension of irreparable harm
It was argued that should the relief sought by the Applicant not be granted, and should the Respondent be allowed the continued use of the master suite, the Applicant would suffer irreparable harm as the Respondent would continue to make life at the matrimonial home intolerable and would effectively “drive him out” of the master bedroom, denying him access to the room in which he had slept for the past 24 months, H M v L M supra.
Furthermore, should the relief sought by the Applicant not be granted, the child’s stability would be compromised, as the living conditions would continue to be intolerable, and the need for her to learn to sleep alone, in her own bed, would remain unchanged.
C. Balance of convenience
It was submitted that the balance of convenience was in the Applicant’s favour based on the facts stated above as well as the fact that:
- on the Respondent’s, and the Applicant’s, version, the matrimonial home was an extremely large home, with multiple rooms and bathrooms;
- the Respondent slept in one of the guest bedrooms, without complaint, for a period of approximately 24 months;
- the aforesaid guest bedroom was available for the Respondent to occupy; and
- there were other bedrooms available at the matrimonial home for the Respondent to occupy.
D. No other satisfactory remedy
No other satisfactory remedy was, available to the Applicant as the Respondent had steadfastly refused to vacate the master bedroom and has even gone so far as to suggest a ridiculous “bedroom care and contact regime” to enable her to continue to upset the parties’ living arrangements, notwithstanding the fact that her suggestion was entirely to the detriment of the parties’ minor child.
It was submitted that, the Applicant, who had been sleeping in the master bedroom for a period of 24 months, should not have to move out of that bedroom on the whim of the Respondent who was clearly, as submitted, attempting to gain a tactical advantage in the divorce action.
Order
The Applicant succeeded with the application and the Respondent was evicted from the main bedroom. Furthermore, and due to the Respondent’s inappropriate conduct, a cost order was granted against the wife, including the costs of two counsel.
Case Summary, by:
Bertus Preller
Family Law Attorney
Maurices Phillips Wisenberg - Cape Town