When Relatives Try to Claim the Family Home

It is one of the most painful things a family can face. At the very moment of loss or upheaval, a relative arrives to announce that the house is now theirs. It does happen. But it is far more often unlawful than people realise, and knowing your rights is the first and strongest protection.

On divorce, relatives have no claim

When a registered marriage ends, the home is divided between the two spouses under section 7 of the Matrimonial Causes Act. The wishes and demands of extended family carry no legal weight at all. A court looks at the spouses and the children, not at uncles, elders or anyone else. See Dividing the Matrimonial Home.

On the death of a spouse, the survivor is protected

This is where so called property grabbing happens, and it is also where the law protects a surviving spouse strongly.

• Grabbing is a crime. Forcibly taking the home, or evicting a surviving spouse and children, is a criminal offence. It can be reported to the police, and a court can order grabbed property returned.
• You can stay in the home. Until the estate is lawfully wound up, the surviving spouse has the right to remain in the home and to keep using the household property, under the law that protects a deceased person's family.
• You inherit the home if there is no will. Where a spouse dies without a will, the surviving spouse inherits the matrimonial home and the household goods, plus a share of the rest, under the Deceased Estates Succession Act. This protection covers spouses in registered and in unregistered customary marriages alike.
• No relative can self appoint. Nobody may simply declare themselves in charge and share out the estate. It must go through the Master of the High Court and a properly appointed executor. See Buying From a Deceased Estate.

The gap to close in advance

Two things can weaken a spouse's position, and both can be fixed ahead of time. First, while both spouses are alive, a home in one spouse's sole name gives the other no automatic right to it. Second, a valid will can leave the deceased's own share to someone other than the surviving spouse. The protection is strongest when it is built in early, calmly, rather than improvised in a crisis.

Four ways to protect the home

1. Put the home in joint names. The clearest protection while both partners are alive. See Two Names on One Deed.
2. Make a will, together. Decide deliberately who the home goes to, instead of leaving it to default rules or a family fight.
3. Register the marriage. It makes proving your status, and your rights, far easier when it matters most. See Lobola Paid, House Built, No Certificate.
4. If a death happens, act fast and lawfully. Go straight to the Master, have an executor appointed, and get legal help before anyone touches the property. See Inherited a Stand With Five Siblings' Names.

You do not have to face grabbing relatives alone, and you rarely have to give in to them.