Married tenants and court regulation of occupancy rights

Regardless of whether there is a sole tenant or the spouses are joint tenants, either spouse can apply to the court for an order regulating or restricting the occupancy rights of the other spouse. [1] S/he can also apply to the court for an order declaring and/or protecting her/his own occupancy rights.

Either spouse can apply to the courts for orders restricting and /or regulating the occupancy rights of the other spouse. [2] An order restricting occupancy rights may place limitations on the non-applicant spouse's use of the property. For example, it may seek to prevent one of the spouses from inviting a certain person, such as a new partner, into the matrimonial home.

A court order regulating how spouses utilise their occupancy rights could result in the spouses using parts of the accommodation at different times.

In a situation where, for example, one spouse is harassing the other in an attempt to make her/him leave the tenancy, the harassed spouse can apply to the court for an order declaring her/his occupancy rights. [3]

The court could also make an order enforcing a spouse's occupancy rights if the other spouse has ejected her/him from the property. [4] 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. [5] For more information, please see the section on exclusion orders.

For a court to grant an order declaring the rights of either spouse it must only be convinced that such rights exist, [6] in other words that the property is in fact a matrimonial home. However, in deciding whether to grant any of the other orders mentioned above (regulating, restricting, enforcing and/or protecting occupancy rights), the court will take all the circumstances of the case into consideration. In particular it should take into account: [7]

• the conduct of the spouses

• the needs and financial resources of the spouses

• the needs of any children of the family

• the extent to which the home is used by either spouse to carry out a trade, business or profession

• whether the entitled spouse has made other accommodation available to the non-entitled spouse.

No order granted should have the effect of excluding one of the spouses from the matrimonial home. [8] An entitled spouse can only be excluded from the matrimonial home if s/he is served with an exclusion order. For more information, please see the section on exclusion orders.

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. [9]

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 [10]

• where the non-entitled spouse has not cohabited with the entitled spouse or occupied the matrimonial for a continuous period of two years beginning on or after 4 May 2006. [11]

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.

The orders can also prohibit the non-applicant partner from entering or remaining in: [12]

• 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.

This can only be the case if the order is granted on or after 4 May 2006. [13]

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

If it appears to the court that the applicant spouse has suffered a loss of occupancy rights, [14] 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), [15] the court can order the non-applicant spouse to pay the applicant spouse a sum of compensation. [16]