Exclusion orders for married tenants

The court may grant an exclusion order to protect the applicant spouse or any child of the family if it thinks it is necessary for their protection from any conduct, reasonably feared conduct, or threatened conduct which is or would be injurious to their mental or physical health. [1] The applicant spouse does not need to be living in the matrimonial home at the time of seeking an exclusion order. [2]

The courts will only make such an order if it decides that it is just and reasonable to do so. It takes account of such factors as: [3]

• the conduct of the spouses

• their respective needs and financial resources

• the needs of any children

• the extent to which the home is used in connection with any trade or business

• whether one spouse has offered the other suitable alternative accommodation.

Either spouse can apply to the court to recall (suspend) or vary the exclusion order. If neither spouse does so then the order will last until: [4]

• the marriage ends through death or divorce

• the entitled spouse ceases to be an entitled spouse, for example, because s/he renounced her/his occupancy rights

• both lose their right or permission to occupy the matrimonial home, for example, where they are evicted following a court order.

Further, if the non-applicant spouse does not occupy the home for a period of two years or more beginning on or after 4 May and during that time s/he does not cohabit with the entitled spouse s/he will lose her/his occupancy rights. [5] As a result any court order regulating those rights will cease to have effect.

Unless the non applicant spouse satisfies the court that it is unnecessary to do so, if asked, the court will also grant ancillary orders along with the exclusion order [6] including:

• a warrant of ejection, an order evicting the non-applicant spouse from the home, enforceable by sheriff officers

• a matrimonial interdict preventing the non-applicant spouse from entering the matrimonial home without the applicant spouse's express permission

• an interdict to stop the non-applicant spouse from removing furniture from the matrimonial home without the written consent of the applicant spouse or through a court order. [7]

The court may also grant an interdict to prevent the non-applicant spouse from entering or remaining in a specified area in the vicinity of the matrimonial home or any other property occupied by the applicant spouse. [8] For more information, please see the page on matrimonial interdicts.

The courts can grant an interim exclusion order pending the hearing for a full exclusion order. Ancillary orders can also be attached to it. The non-applicant spouse has to be given the opportunity of making her/his case in court. [9]

The applicant spouse can apply to the courts to have powers of arrest attached to interdicts granted along with an exclusion order or interim exclusion order. Where the applicant spouse has done so, the courts are obliged to grant the powers. [10] It is discretionary on the courts to attach powers of arrest to other matrimonial interdicts. [11]

Where the tenant or joint tenant is someone whose accommodation is provided as part of her/his job, [12] or where the tenancy is part of an agricultural holding the court will take this into account in deciding whether or not to grant an exclusion order. [13] The courts will look at the likely effect of any exclusion of the non-applicant spouse including the availability of local housing that the excluded spouse could access and still do their job.