In the midst of a divorce, one of the most emotionally charged questions is "Who gets to stay in the marital home?". In South Africa, this issue is not only emotionally significant but also legally complex. This article provides an overview of how rights to the marital home are determined during and after a divorce process in South Africa.

Understanding the Legal Framework

The determination of who stays in the marital home during and after a divorce in South Africa depends largely on the marital property regime under which the couple was married. This could be in community of property, out of community of property with accrual or out of community of property without accrual.

Marital Property Regimes and the Marital Home

1. In Community of Property: Both spouses have an equal right to the marital home, as all assets and liabilities are jointly owned.

2. Out of Community of Property with Accrual: The spouse who owns the home or whose name is on the mortgage usually has a stronger claim. However, the other spouse may claim a share based on the accrual system.

3. Out of Community of Property without Accrual: Ownership rights to the marital home are generally clearer, as each spouse retains their separate property.

Factors Influencing the Decision

Several factors can influence who gets to stay in the marital home:

• Custody of Children: The parent who has custody of the children is often given preference to stay in the marital home to minimize disruption to the children's lives.

• Financial Stability: The spouse who can afford to maintain the home might be more likely to stay.

• Contribution to the Home: The court may consider which spouse has contributed more towards the home.

Interim Arrangements During Divorce Proceedings

Temporary arrangements are often made while the divorce is being finalized. These can be based on mutual agreement or court orders, focusing on the best interests of the children and the immediate housing needs of both parties.

Legal Guidance is Crucial

Given the complexities, legal advice is invaluable in navigating this aspect of a divorce. An attorney can help in:

• Negotiating Settlements: Working out an agreement that is fair to both parties.

• Representing Interests in Court: Advocating for your rights to the marital home in court proceedings.

Conclusion

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. Understanding the legal framework, recognizing the influencing factors, and seeking proper legal counsel are key steps towards resolving this significant issue.

Barter McKellar’s divorce attorneys have extensive experiencing on advising on all aspects of divorce matters. If you would like to find out more, contact our offices today to schedule a consultation with one of our specialist divorce law lawyers.