Pending divorce and evicting your abusive partner

“My husband and I are busy getting a divorce. We are currently still living under the same roof, but my husband insults me and is quite abusive in front of our children. We bought the house together but I don’t want him living there. Is there any way I can force him to move out before we are divorced?”

It is not uncommon to see instances of domestic violence flair up when parties are in the process of divorce proceedings. Fortunately, the Domestic Violence Act, Act 116 of 1998 (“Act”) was enacted to provide the victims of domestic violence protection from domestic abuse to the extent that the law can provide.

The Act is progressive and recognises domestic violence for the serious social evil that it is by including numerous actions in the definition of domestic violence. Some examples of domestic violence include physical, sexual, emotional, verbal and psychological abuse; economic abuse and intimidation and harassment. An interdict granted in terms of the Act will normally take the form of listing certain things that the other person may not do, such as insult, harass or intimidate the Complainant. Failure to comply with the interdict will result in the person against whom the interdict was granted (“Respondent”) being charged with a criminal offence and, if convicted, the Respondent will be ordered to pay a fine and/or could be sentenced to prison for a period not exceeding five years.

Section 7(1)(c) of the Act specifically provides that the Respondent may be prevented from entering a shared residence if it appears that same will be in the best interest of the Complainant. Our courts have considered the irregular nature of such an order and have held that, particular care must be taken to ensure that the granting of such an order is justified and truly necessary. 

Accordingly, our courts have stated that, at the very least, the following must be taken into account:

  • The potential prejudice that could be suffered by the Respondent and the Respondent’s children should the order be granted;
  • The Respondent’s ability to obtain alternative accommodation and his / her financial resources;
  • Should there be children involved, the Respondent’s access to his / her children in the event of an eviction order being granted;
  • The Court must be sure that the Respondent understands that an eviction order is being considered and the Respondent must be granted the opportunity to obtain legal representation if he/she so wishes.

The Court also referred to the possibility of achieving a similar result (i.e. stopping the abuse), in a different and less intrusive or drastic way. An example hereof may be to initially apply for an interdict to stop the Respondent from insulting and verbally abusing the Complainant and to see whether same is not sufficient to stop the abusive behaviour.

Accordingly, it is indeed possible to obtain an order preventing one party from entering a shared residence, but such an order will not be given lightly or even always immediately. However, every case warrants its own consideration and it would be advisable that you consult your attorney or family law advisor for detailed advice regarding your specific situation.

October 12, 2020

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