Who gets to keep the house when love falls apart?

For many South Africans, the family home is more than a roof over their heads. It is a store of wealth, a place of memory and – when children are involved – a foundation of stability. This is why, when marriages break down, the question of who gets to stay in the house becomes one of the most contested and emotionally charged issues in divorce proceedings.

The starting point lies in South Africa’s three marital property regimes: in community of property, out of community with accrual, and out of community without accrual.

Renier Kriek, managing director at Sentinel Homes, says people often underestimate the extent to which the legal regime chosen before marriage will shape their rights to property. 

“If you own or intend to buy property for habitation, business or investment, you need to consider the implications before tying the knot,” he says.

By default, couples without an antenuptial contract are married in community of property. All assets – including the family home – are shared equally, regardless of who paid the bond. 

“I don’t know an attorney who would recommend this model of marriage to their clients,” says Kriek. “It’s impractical to have the parties bound at the waist, as neither can act commercially without the other’s consent. In addition, it’s poor risk management because all the assets are exposed to either party’s actions.”

In marriages out of community of property without accrual – known as “cold exclusion” – each spouse retains what they brought into the marriage and acquired during the marriage. For entrepreneurs, Kriek argues, this protects portfolios from a partner’s creditors. 

By contrast, marriages out of community with accrual balance independence during marriage, with an equalisation at the end. As Kriek notes: “It ensures both come away equal … However, it could still mean losing the property you owned separately, because assets may be sold to cover the accrual payment due.”

Rights of occupation

But ownership and occupation are not the same thing. Cor van Deventer of VDM Attorneys emphasises that even when a home is registered in one spouse’s name, the other may still have a legal claim to occupy it, depending on the marital regime. “In divorce matters, the term ‘family home’ refers to the primary residence where the spouses lived together during the marriage – whether it is owned, mortgaged or rented,” he says.

A crucial point is that no spouse can lock the other out. “Regardless of whose name the property is in, both spouses usually have a right to occupy the family home during the divorce process,” Van Deventer explains. Forcing a partner out without a court order is unlawful. If tensions escalate, a court may grant interim relief, such as exclusive use of the home. In cases of abuse, protection orders under the Domestic Violence Act can also grant exclusive occupation.

When children are involved

Courts are especially careful when children live in the home. “Children need stability and continuity, particularly during the upheaval of divorce,” says Van Deventer. Judges are reluctant to disrupt schooling or familiar environments unnecessarily, and often allow the primary caregiver to remain in the house – at least temporarily.

Heidi Barter, writing for Divorce Law South Africa, emphasises the importance of considering children’s interests. “The parent who has custody of the children is often given preference to stay in the marital home to minimise disruption to the children’s lives,” she notes. Financial stability and each spouse’s contribution to the home also influence decisions.

Sometimes, occupation is temporary: one parent remains until the youngest child turns 18 or finishes school, after which the home is sold and the proceeds are divided. In other cases, one spouse buys out the other’s share, or the property is transferred entirely as part of a broader settlement.

Legal advice is essential

All three experts caution that divorcing couples need legal guidance early on. “Do the smart thing and get advice from your attorney on the best way to proceed,” says Kriek. “A contract may seem unromantic when wedding bells are ringing, but it will protect you both in the long run.”

Barter agrees, stressing that attorneys can negotiate settlements, represent spouses in court and safeguard financial security. “The question of who stays in the marital home during and after a divorce in South Africa is multifaceted, blending legal, financial and emotional considerations,” she writes.

In practice, there is no one-size-fits-all outcome. Marital property regimes establish the legal framework, but courts consider contributions, children’s interests and financial realities before deciding whether a home should be sold, transferred or temporarily occupied. 

For couples, it means the family home – often their most valuable and meaningful asset – becomes the pivot on which the end of a marriage turns.

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