Domestic Violence Act Cap 11:09
The Domestic Violence Act (the Act) was enacted to afford protection in cases involving domestic violence by the granting of protection orders, to give the police powers of arrest where domestic violence offences occur and for any matters connected to domestic violence. The Act applies to both male and female and to all members of a household.
Domestic Violence Offences
Pursuant to the Act, domestic violence offences include, but are not limited to, offences such as murder or attempted murder; the use or threat of any other forms of violence including physical or emotional injury or assaults; rape; harassment such as persistent verbal abuse; psychological abuse including blackmail, repeated isolation, deprivation of adequate food, rest, even access to one’s children or the custody thereof, or conduct which may degrade or scorn a person’s personal worth; malicious damage to property; inducing fear of physical or psychological violence; persistent following of a person from place to place; watching or besetting the premises of the place where the person resides, works, conducts business, place of education; the using of abusive language; persistent unwelcome communications; and drugging of a person with drugs or alcohol.
Applications under the Act
Who can apply?
The person making the application is referred to as the “Applicant” and the person responding to the claim is referred to as the “Respondent”.
Under the Act, an application can be made to the court by the following persons:
- Persons who are or were married.
- Persons who are or were in a common law relationship.
- Persons who have engaged in a relationship of a sexual nature
- Persons who have or are living in the same household otherwise than merely by reason of one being an employee, tenant, lodger or boarder
- Persons who are relatives
- Persons who are engaged to be married
- Children and persons with a mental disability.
Applications can be made on behalf of these persons by parents or guardians, qualified social workers and the police. However, once the Court is satisfied that a child under the age of sixteen has sufficient understanding to make an application, the Court may grant such permission to do so. A child between the ages of sixteen and eighteen can make an application on their own behalf as well as a qualified social worker and/or the police.
Who are the Parties to the Proceedings after the application is made?
Where an application is made on someone’s behalf, the person on whose behalf the application is made will be a party to those proceedings. In instances where the application is made on behalf of a child or person with a mental disability, the parent or guardian will be a party to the proceedings.
Court Proceedings
It is the constitutional right of any party to a court proceeding to retain an Attorney-at-law to provide legal representation. While this is not compulsory, to ensure that the case is properly represented, it is advisable to do so.
Domestic Violence cases are heard by a Magistrate in the Magistrate’s Court in the district where the offence is committed, usually no more than seven days after the application is filed. According to the Act, such matters should be heard in private unless the Court orders otherwise. Further, there should not be any publications of the case before the Court grants permission for such publication. An Applicant should insist that a courtroom be emptied before the hearing of his/her case.
Upon the filing of an application, a copy of the application and a notice of the proceedings must be served personally on the respondent. Failure by the respondent to make an appearance at the hearing of the proceedings can result in the matter proceeding in the respondent’s absence or the Court can issue a warrant for the respondent’s arrest if the Court is satisfied that the respondent was duly served notice of the hearing. In the case of children and the mentally disabled the Application and Notice of Proceeding must be served on the parent or guardian.
Pursuant to the hearing, the Court can make the following orders as may be deemed fit in each circumstance:
- Protection Order, which restrains the respondent from engaging in any conduct that constitutes a domestic violence offence.
- Occupation Order, which grants the named party in the order permission or rights to live in the household residence for such period that it deems fit.
- Tenancy Order, where the Court vests in the party named in the order, the tenancy of any dwelling house held by the respondent as the sole tenant or as a joint tenant or as a household resident of the party named in the order.
The relevant forms to make any application for the various orders are available at the Magistrate’s Court, The Women’s Affairs Bureau and social service organisations.
The Domestic Violence Act only serves as a treatment for the symptoms of domestic violence by providing protection to persons affected. It is not a cure for this social illness. Therefore, persons exposed to domestic violence are encouraged to seek help. The Help and Shelter, religious organisations or social service organisations can provide aid.
No justification can be pro-violence!
