Page 115 - Q&A

Pending divorce and evicting your
abusive partner

September 2020
“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 Family
opportunity to obtain legal representation if he/she so wishes.

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