For many couples, the family home represents far more than bricks and mortar. It holds memories, a sense of security, and emotional significance — especially when children are involved. At the same time, it is often one of the most valuable financial assets a couple owns, which makes decisions about the home critically important during a divorce.

Questions around who stays, who leaves, and who ultimately owns or occupies the house are often some of the most sensitive and contested issues to resolve.

Understanding your legal rights regarding the family home is essential from the very beginning of the divorce process. The decisions you make early on can have a lasting impact on your financial security, your living arrangements, and, most importantly, your children’s sense of stability.

Whether you are concerned about staying in your home, worried about being asked to leave, or simply trying to plan your next steps wisely, knowing where you stand legally is the first step toward protecting your future.

What Is Classed as the “Family Home” in South African Law?

In divorce matters, the term "family home" refers to the primary residence where the spouses lived together during the marriage — whether it is owned, mortgaged, or rented.

It is important to understand that in South African law, the family home holds significant legal weight, even if it is registered in only one spouse’s name.

Owned Property

If the home is jointly owned, both spouses have a legal right to the property, regardless of who contributed more financially.

If the home is registered in only one spouse’s name, the rights of the non-owning spouse will depend on the marital property regime (in community of property, out of community with accrual, or out of community without accrual).

In many cases, even if the title deed lists only one spouse, the non-owning spouse may still have a financial claim or a right of occupation, depending on how the marriage was structured.

Rented Property

If the family home is rented, both spouses may still have a right to occupy the property, particularly if the lease was signed during the marriage or the home was treated as the joint family residence.

In these cases, disputes about who stays in the rental home are handled similarly to disputes over owned property — with the focus on fairness, stability, and, where applicable, the best interests of any children involved.

Property Acquired Before or During the Marriage

The timing of when the property was acquired can also affect rights:

• Property acquired before marriage may remain separate in certain marital regimes.
• Property acquired during the marriage is often subject to division, especially if the couple is married in community of property or out of community with accrual.

However, even where a home technically belongs to one spouse, the court can still take a flexible approach, particularly when children's housing needs are involved.

Can You Evict Your Spouse from the Family Home?

One of the most common questions during a divorce is whether one spouse can force the other to leave the family home.

The simple answer is: No, not without a court order.

General Rule - No Unilateral Evictions

Regardless of whose name the property is in, both spouses usually have a right to occupy the family home during the divorce process.

Even if tensions are high, one spouse cannot legally evict the other without going through proper legal channels. Attempting to do so could lead to serious legal consequences.

The law recognises that both parties, and particularly any children, need a degree of stability while the divorce is underway.

Interim Arrangements

If living together becomes impossible — for example, due to conflict, emotional distress, or allegations of abuse — a spouse can apply to the court for an interim relief order (also known as a Rule 43 or Rule 58 application, depending on the court).

Such an order can:

Grant exclusive use of the family home to one spouse pending the finalisation of the divorce

• Set out interim arrangements for children and maintenance
• Address urgent issues such as safety or financial support

These orders are granted only after careful consideration by the court, and the spouse seeking exclusive occupation must show why it is justified.

Until an order is granted, both spouses remain entitled to live in the home, even if only one of them is the registered owner or tenant.

Evicting a Spouse from the Matrimonial Home

Removing a spouse from the family home is a serious legal step — and it must be done lawfully. South African courts are cautious when considering applications that would disrupt a person’s living situation, especially when children are involved.

Protections Under the Domestic Violence Act

If there are allegations of domestic violence — including physical, emotional, verbal, or psychological abuse — a spouse can apply for a protection order under the Domestic Violence Act.

A protection order may include a provision granting exclusive occupation of the home to the victim, meaning the abusive spouse can be legally ordered to leave immediately.

In such cases, the court’s primary concern is the safety and wellbeing of the victim and any children living in the home.

Occupation Orders vs Eviction Orders

• Occupation Order

This is typically sought during divorce proceedings to allow one spouse exclusive use of the matrimonial home until the divorce is finalised. It is based on fairness, not just ownership.

• Eviction Order

A formal eviction order under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act) is more complex. It usually applies to tenants or unlawful occupiers, but it can be relevant if the marital relationship has broken down entirely and one party no longer has a legal right to remain.

In both cases, court approval is essential — and the party seeking the order must show good cause.

Forcing a Spouse Out Without a Court Order Is Unlawful

Taking matters into your own hands — changing locks, removing belongings, denying access — is illegal and can result in serious legal action.

If you need your spouse to leave the home for valid reasons, it must be handled through formal legal channels, ensuring the process respects both parties' rights and the stability of any children involved.

Who Gets to Keep the House in a Divorce?

There is no automatic rule about who keeps the family home when a marriage ends. Instead, several factors are considered — and the most important starting point is the couple’s marital property regime.

Divorce Where the Couple Is Married In Community of Property

• All assets and debts are shared equally.
• The family home forms part of the joint estate, regardless of whose name it is registered under.
• On divorce, the joint estate is typically divided 50/50, unless a court orders otherwise.
• One spouse may buy out the other’s share, or the home may be sold, and the proceeds divided.

Divorce Where the Couple Is Married Out of Community of Property with Accrual

• Each spouse retains ownership of their pre-marital assets.
• The growth (accrual) of each estate during the marriage is shared equally.
• The house is included in the accrual calculation unless specifically excluded in the antenuptial contract.
• Settlement may involve a buy-out, sale, or transfer depending on the accrual balance.

Divorce Where the Couple Is Married Out of Community of Property Without Accrual

• Each spouse keeps their separate estate.
• There is no sharing of assets acquired before or during the marriage.
• If the house belongs to one spouse alone, it remains theirs after divorce unless other claims (such as improvements funded by the non-owner spouse) can be proven.

Negotiating Who Stays or Who Gets Bought Out

In practice, spouses often negotiate:

• One partner keeps the house and pays the other a settlement amount.
• The house is sold, and the proceeds are divided according to the property regime.
• The house is transferred entirely to one spouse as part of an overall settlement agreement.

When negotiations fail, the court may make an order regarding the home, weighing factors such as financial contributions, custody arrangements (especially involving children), and practical living needs.

Who Gets the House When Children Are Involved?

When children are part of a divorce, decisions about the family home are often influenced by their needs — not just the financial entitlements of the parents.

South African courts always prioritise the best interests of the child, and housing arrangements are no exception.

Stability for the Child

Children need stability and continuity, particularly during the upheaval of divorce.

Courts are often reluctant to disrupt a child's home environment unnecessarily, especially if it is close to their school, friends, and extended family.

As a result, the parent who is granted primary care of the children may be allowed to stay in the family home — at least temporarily — to minimise disruption to the children’s lives.

Temporary vs Permanent Arrangements

Sometimes the court or settlement agreement will provide for:

• Temporary occupation: The parent caring for the children remains in the home until a certain milestone (e.g., until the youngest child turns 18 or finishes school), after which the home may be sold and proceeds divided.
• Permanent transfer or sale: In other cases, the home may be transferred to one parent permanently as part of the divorce settlement, with compensation paid to the other spouse.

Each case depends on its facts, including financial affordability, the marital property regime, and the feasibility of maintaining the home.

Key Considerations for the Court

When children are involved, courts consider:

• Whether moving out would cause emotional distress
• Whether alternative housing would disrupt schooling and daily life
• Whether the home is suitable for the child’s long-term development

Importantly, while children's needs are central, they do not automatically "award" the house to one parent — it must still fit within the broader financial and legal framework of the divorce.

What Are My Rights as a Wife (or Husband) in a Divorce?

When a marriage ends, many people worry about whether they will be treated fairly — particularly if they earned less, stayed home to raise children, or contributed in non-financial ways.

South African law provides important protections to ensure that both spouses' rights are recognised, regardless of who was the primary breadwinner.

Equal Rights, Regardless of Gender

The law does not distinguish between husbands and wives.

Both partners are treated equally when it comes to the division of assets, the right to maintenance (if appropriate), and decisions about the family home.

This is true whether the marriage was in community of property, out of community with accrual, or out of community without accrual.

Understanding Your Marital Property Regime

Your marital property system plays a key role in defining your financial rights:

• In community of property: Equal share in the joint estate.
• Out of community with accrual: Right to share in the growth of assets during the marriage.
• Out of community without accrual: No automatic claim to the other spouse’s assets unless specific circumstances apply (e.g., unjust enrichment).

Knowing which regime applies to your marriage is essential when asserting your rights in relation to the family home and other assets.

Protecting Financial Security After Divorce

If you have contributed to the marriage through unpaid labour — raising children, maintaining the household, supporting your spouse’s career — these contributions are recognised in the broader division of assets and accrual calculations where applicable.

Legal advice is especially important for spouses who feel financially insecure at the outset of divorce.

Early legal intervention helps protect your housing rights, secure appropriate maintenance if needed, and ensure you are negotiating from a position of strength.

Options for Dealing with the House After Divorce

Deciding what to do with the family home is often one of the biggest financial and emotional challenges during a divorce.

There are several common ways couples approach the division or use of the home — each with different legal and practical implications.

Selling the House and Splitting the Proceeds

• This is often the simplest option:
• The house is sold on the open market.
• After settling any outstanding mortgage, transfer costs, and fees, the net proceeds are divided according to the couple's marital property regime or settlement agreement.
• Both spouses can then move on independently.

This option provides a clean break but may not always be practical, especially when young children are involved.

One Spouse Buying Out the Other’s Share

In some cases, one spouse may wish to stay in the house permanently:

• They can negotiate to "buy out" the other spouse's share.
• This often involves paying half the value of the equity (depending on the property regime) or agreeing to take over the mortgage and liabilities associated with the property.

An attorney and property expert can assist in valuing the house accurately and structuring the buy-out legally and fairly.

Post-Divorce Occupancy Arrangements

Sometimes, the parties agree that one spouse (often the primary caregiver of the children) remains in the house temporarily, even though ownership issues are not immediately finalised.
For example:

• The house is sold later, once the children have finished school.
• A deferred sale is agreed upon to provide stability for the children.

Clear terms need to be set to avoid future disputes over maintenance costs, bond repayments, and eventual sale procedures.

Dealing with a Bonded (Mortgaged) Property

If there is an outstanding mortgage:

• Both spouses may remain jointly liable for the bond unless refinancing arrangements are made.
• Selling or transferring ownership often requires the bank's approval.
• Where one spouse takes over the bond, the bank must agree to substitute debt liability.

It is critical to address bond issues early in the divorce process to prevent financial surprises later on.

What If the House Is Only in One Spouse’s Name?

It is common for one spouse to be the sole registered owner of the family home — either because they purchased it before the marriage or because the property was registered only in their name during the marriage.

However, ownership on paper does not necessarily determine what happens to the house in a divorce.

Marriage in Community of Property

If you are married in community of property, it does not matter whose name is on the title deed.

• The house forms part of the joint estate.
• Both spouses have a 50% interest in the property by law.
• Upon divorce, the value of the house (after settling debts) is included in the equal division of the estate.

Marriage Out of Community of Property With Accrual

If you are married out of community of property with accrual, ownership is initially separate.

However:

• The growth (or accrual) in the value of each spouse’s estate during the marriage is shared equally.
• If the house increased in value, the non-owning spouse may have a financial claim to share in that growth, depending on how the overall accrual calculation is done.

Marriage Out of Community of Property Without Accrual

If you are married out of community of property without accrual, each spouse retains full ownership of their separate assets.

• In this case, the non-owning spouse generally has no automatic claim to the property.
• However, claims such as unjust enrichment may arise if the non-owner made significant contributions to the property's improvement or maintenance without compensation.

Contributions Matter

Even where the law recognises one spouse as the sole legal owner, practical contributions — such as home renovations, paying rates and taxes, or covering maintenance costs — can sometimes create equitable claims that need to be explored during the divorce settlement.

Seeking early legal advice helps you understand whether you have a valid financial interest in the home, regardless of what the title deed says.

Why You Need Legal Guidance Before Deciding About the House

Decisions about the family home during a divorce are rarely straightforward.

The home is tied to financial security, emotional wellbeing, and — when children are involved — their sense of stability. Making the wrong move, or agreeing to terms without fully understanding your rights, can have serious long-term consequences.

An experienced divorce attorney can help you:

• Understand your legal position based on your marital regime and financial contributions
• Negotiate fair and sustainable agreements regarding property ownership, occupation, and sale
• Protect your financial future, whether through buy-out arrangements, deferred sales, or division of proceeds
• Anticipate potential challenges, such as bond liability, transfer duties, and registration issues
• Prioritise the best interests of children when housing needs are being considered

Without proper legal advice, you may unknowingly give up rights to the home or agree to settlement terms that leave you financially vulnerable.

Working with legal professionals who combine deep technical expertise with a sensitive understanding of family dynamics gives you the strongest foundation for moving forward confidently — and for protecting what matters most.

Protecting Your Home and Your Future

Divorce is a major life transition, and decisions made during this time will shape your future for years to come.

The family home is often one of the most valuable — and emotionally significant — assets involved. That’s why understanding your rights, acting carefully, and seeking trusted legal guidance is so important.

By taking a proactive, informed approach to property issues, you can protect your financial security, provide stability for your children, and start the next chapter of your life with greater peace of mind.

Contact us.