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CaseLaw, Attorney
Category: South Africa Law
Satisfied Customers: 1534
Experience:  BCom; LLB; Masters in Law
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My wife has decided that out marriage is over. I have moved

Customer Question

Hi, My wife has decided that out marriage is over. I have moved out of the house for the weekend in order for things to cool down after a huge argument on Friday evening. After discussing with her about moving back as I don't want my kids to feel abandoned initially she said yes, but 6hours later now says no. She is trying to make out that I'm abusive however I have never raised my hand towards her or the kids. We bought our house together and I want to know what are my rights things to staying there. I also run my business from home.
JA: Because real estate law varies from place to place, can you tell me what state this is in?
Customer: Gauteng south Africa
JA: Has anything been filed or reported?
Customer: No,t his all happened over the weekend
JA: Anything else you want the lawyer to know before I connect you?
Customer: During our argument on Friday I got frustrated and broke her phone. This was at her sisters house and her whole family was hanging up against me and made me loose my cool a bit.
Submitted: 9 months ago.
Category: South Africa Law
Customer: replied 9 months ago.
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Expert:  CaseLaw replied 9 months ago.

Hi there and thank you for your question,

I will try to assist you with your legal question but please feel free to ask as many follow up questions as you like until you are 100% satisfied.

The only way that she can stop you from coming back to the house, is if she applies at court / police station for a domestic violence protection order against you, on the basis that she needs to be protected from you due to emotional or physical abuse that you levy towards her. It is a 2 step process; the first step is she deposes to an affidavit and the police give her an interim protection order; the second is to go back to court (and you can appear) and then she must convince the magistrate to make the interim order into a final order. You would obviously have the opportunity to argue why it should be refused. Everyone can have witnesses to testify. e.g. Bob saw you hit her. Harry took her to hospital for the assault.

If she doesn't do the above, there is no way that she can keep you away from the house. The house is partly yours, and you are entitled to access to your property. Also, you work from home.

I suppose my advice is that if you are physical with her, or threaten physical violence, then it will make it MUCH easier for her to "kick you out" through a protection order - since one of the orders contained in the protection order might be that you are not allowed within 500m of your house. i.e. you are forced into moving out!

If my answer hasn't answered all of your questions, please send me a REPLY with follow up questions so that I can continue to assist you in this same thread for as long as you need. Let me know if you need more advice - dont just rate my answer as "bad".

If my are HAPPY with my answer then please click one of the STAR ratings or the SMILEY FACES to rate my answer!

Good luck and best regards,


Customer: replied 9 months ago.
Hi, thanks for your answer. My next question would be if I decide to go and stay there against her wishes, would that give her any leverage in court if it comes to a custody battle for the kids, or would I be able to argue that I am doing it not to abandon our kids. I anticipate her first to try say to me I'm not welcome as it is stressful for her and it will confuse our kids. They are 2 and 4 years old.
As mentioned during our argument on Friday I got frustrated and broke her phone. I am sure she will use that incident to try and portray me as vilant, but as mentioned I have never raised my hand towards her or the kids. Would that be enough evidence on her behalf to obtain the protection order? My other concern is she has friends in the police service that will definitely bend the rules to assist her.
Do I have the right to say to her if she does not want to be in the same house then me she must leave?
Expert:  CaseLaw replied 9 months ago.

No, it wouldn't be any form of leverage, unless your kids witnessed you assaulting your wife - then that would be bad.It would be good for you to be there, since you could prove that you have your kids best interests at heart. It might be enough for a protection order, but you would need to argue that it was a once-off thing and that you were provoked or something. It was "out of the ordinary", and that it has never happened before. Yes, she might be able to use her friends in the police to assist - but remember that they need to act reasonably - so they couldn't just arrest you "for fun" or because she asked. Yes, you can say to her that she must leave, but don't kick her out because then she'd take the kids and you would look bad.

Expert:  CaseLaw replied 8 months ago.

Hi there again,

I see that you've read my answer and I hope that you understood the answer and that it was useful? If you have a further question please ask it, or if you need clarity on the answer please let me know.

If you're happy that I've answered your question, please leave positive feedback for me.