A divorcing woman’s attempt to continue living in a matrimonial home failed after she turned to the courts to retain occupancy despite the home having already been sold.

According to IoL, the SCA upheld the decision of the Western Cape High Court.

The divorce proceedings of the couple, married out of community of property under the accrual system, have yet to conclude, after starting in June 2010.

In those proceedings, the wife claimed payment of half the difference in the accruals of her and her estranged husband’s respective estates, as well as lifelong spousal maintenance.

The property was purchased by the husband in 2003. Although he was the sole registered owner, it served as a family home until it was sold in March 2022. The wife challenged the lawfulness of the sale and submitted her eviction should be invalid.

The High Court held that prior to dissolution of the marriage, a spouse only has a contingent right to claim half of the accrual in the estate of the other spouse and has no right to prevent the other spouse from dealing freely with his own property.

After the transfer of the property, the new homeowners, who wanted to ensure vacant possession of the property, made gratuitous offers to the woman on the basis that she vacate no later by 31 January 2023.

However, the woman rejected the offers and the homeowners filed an application in the High Court under the PIE Act to evict her.

In her ruling, SCA Judge Anna Kgoele said: ‘The current legal position does not provide for (her) continued occupation of the property pending divorce. The right that she has is a contingent right to share in the value of the accrual determined at the dissolution of the marriage.’

Full IoL report