Married owner occupiers and court regulation of occupancy rights

Regardless of whether there is sole owner or the spouses are joint owners, where both spouses remain in the property after their relationship has broken down, either spouse can apply to the court for an order regulating or restricting the occupancy rights of the other spouse or declaring her/his own rights. [1]

An order restricting the rights of the spouse may seek to prevent one of the spouses inviting certain people into the matrimonial home, for example a new partner. A court order regulating how spouses utilise their occupancy rights could even result in them using parts of the accommodation at different times.

An order cannot be made if it would exclude the non-applicant spouse from the family home entirely. [2] In order to do this, it is necessary to apply to the court for an exclusion order. [3] For more information, please see the section on exclusion orders.

In a situation where, for example, one spouse is harassing the other in an attempt to make her/him leave, the harassed spouse can apply to the court for an order declaring her/his occupancy rights. [4] Similarly the court can make an order enforcing a spouse's occupancy rights if the other spouse has ejected her/him from the property. [5] At the same time as applying for an order enforcing her/his occupancy rights, the harassed spouse can apply for an order excluding the other spouse from the family home. [6]

A spouse may also be excluded from the matrimonial home if s/he makes an application to the court for leave to exercise her/his occupancy rights [7] and that application is refused. [8]

When considering whether to make an order regulating or declaring occupancy rights the court will have regard to:

• the conduct of the spouses

• the respective needs and financial resources of the spouses

• the needs of any child of the family

• whether the entitled partner has offered to provide the non-entitled spouse with alternative accommodation. [9]

Court orders are also available to restrain or prohibit the conduct of the non-applicant spouse towards either the applicant spouse or any child of the family. If granted on or after 4 May 2006 the orders can also prohibit the non-applicant partner from entering or remaining in: [10]

• any other residence occupied by the applicant spouse

• any place of work of the applicant spouse

• any school attended by a child in the permanent or temporary care of the applicant partner.

For more information, please see the section on matrimonial interdicts.

If it appears to the court that the spouse who has applied for a court order (the applicant partner) has suffered a loss of occupancy rights, or that her/his occupation of the matrimonial home has been impaired as a result of a deliberate action or failure to do something on the part of the other spouse (the non-applicant spouse), the court can order the non-applicant spouse to pay the applicant spouse a sum of compensation. [11]

Prior to an order being granted the court can grant an interim order regarding occupancy rights. The spouse who did not make the application for the order must be given the opportunity to be heard in court before the interim order can be granted. [12]

Any order made by the court regulating occupancy rights will cease to have effect:

• on the termination of the marriage

• when the entitled spouse ceases to be an entitled spouse (unless s/he has entered into a transaction without the non-entitled spouse's consent)

• where both spouses cease to be entitled spouses. [13]

• Further, if the non-applicant spouse does not occupy the matrimonial home for two years continuously after 4 May 2006 and during that time s/he does not cohabit with the entitled spouse then s/he will lose her/his right to occupy the matrimonial home altogether. [14] As a result any court orders regulating her/his occupancy rights will no longer have effect.