DOMESTIC VIOLENCE 1

THE DOMESTTC VTOLENCE ACT

ARRANGEMENT OF SECTLONS

PART I. Preliminary

1. Short title.

2. Interpretation.

PART 11. App:icritiorz for Orders

3. Power of Court to grant protection order or occupation order.

Protection 0rrler.s

4. Application for protection order.

5 . Breach of protection order.

6 . Duration and discharge of protection order.

Occirpatim Orders

7. Application for a grant of occupation order.

8. Ex prrrtP application for occupation order.

9. Effect of occupation order.

10.

11.

12.

Variation of discharge of occupation order.

Procedure relating to occupation orders.

Power of Court to make ancillary order.

PAR^ 111. General

13. Interim orders.

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3 DOMESTlC VIOLENCE

14.

15.

16.

17.

18.

19.

20.

21.

22.

Conduct of proceedings.

Standard of proof.

Restriction of publication of proceedings.

Orders by consent.

Counselling.

Appe a1 s.

Prdcction of rnortgagec.

Matrimonial Causes Act.

Rules of Court.

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DOMESTIC VIOLENCE 3

THE DOMESTIC VIOLENCE ACT Acts
15 of 1995,
32 of 2004.

[6th May, 1996.1

PART I, Preliminary

1. This Act may be cited as the Domestic Violence Act. short title.

2.-(1) In this Act- lnterpreta-
tion.

"applicant" means any person who applies or on whose
behalf application is made, pursuant to this Act, for an
order;

"child" means-

(a) a person who is under the age of eighteen years 3212004
and who has never been married, being a child of S. 2(a),
both spouses who resides, or immediately
preceding the date of the application was
residing, in the household residence;

(b) a child of either spouse who resides, or imme-
diately preceding the date of the application
was residing, in the household residence and
uho is or was, living in the household as a
child of the family;

(c) a child whether or not a child of a member of the 3212004
household and- S. 2(b)(i).

(i) who is or has been a member of the
household; or

(ii) who resides in the household on a regular
basis; or

(iii) of whom any member of the household is 3212004
the guardian; S. 2(b)(ii).

"Court" means the Resident Magistrate's Court or the
Family Court;

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DOMESTIC WOLENCE

"dependant" includes-

(a) a member of the family of a respondent being a
person who is eighteen years of age or older and
normally resides, or resides on a regular basis,
with the respondent; and

(b) a person who, by reason of physical or mental 0
disability, age or infirmity, is reliant on the
respondent for his welfare or maintenance;

"ex parte application" means an application made without
notice to the respondent;

"member of the household" means a person who normally
resides, or resides on a regular basis, with the
respondent and "member of the respondent's
household" shall be construed accordingly;

"occupation order" means an order made pursuant to
section 7 and includes an interim order made under
section 8;

"prescribed person" means the spouse, a parent, a child or
dependant of the respondent or any person who is a
member of the respondent's household or is in a
visiting relationship with the respondent;

"protection order" means an order made pursuant to section
4 and includes an interim order made under that
section;

"respondent" means a person who is named in an
application made pursuant to this Act;

"spouse" includes-
0

(a) a woman who cohabits with a man as if she were
in law his wife;

(b) a man who cohabits with a woman as if he were
in law her husband;

(c) a former spouse:

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DOMESTIC VIOLENCE 5

"visiting relationship" means a relationship between a man 3212004
and a woman who do not share a common residence, s. 2(9.

which is a close personal relationship by virtue of its
nature and intensity having regard to-

(a) the amount of time that the persons spend
together;

(b) the place where that time is ordinarily spent;

(c) the manner in which that time is ordinarily spent;

(d) the duration of the relationship; and
(e) the existence of a child (if any) of both parties.

PART 11. Application for Orders

3.-(1) The Court may, on application, grant a protection Powerof
order or occupation order in accordance with this Act. Court to

grant
protection

(2) An application for an order referred to in subsection order or
occupation

(I), may be made- order.

(a) by the spouse or parent in respect of whom the alleged
'?

conduct has been, or is likely to be, engaged in by the
respondent;

(b) where the alleged conduct is used or threatened against 3212004
a child or dependant by- s. 3(a).

(i) a person with whom the child or dependant
normally resides or resides on a regular basis;

(ii) a parent or guardian of the child or dependant;

(iii) a dependant who is not mentally disabled;

(iv) a person who is approved' by the Minister
responsible for social welfare to carry out social
welfare work; or

(v) a Constable;

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6 DOMESTIC VIOLENCE

3212004 (c) by a person who is a member of the respondent's
S. 3(b). household or who is in a visiting relationship with the

respondent, in respect of the alleged conduct engaged
in or threatened by the respondent toward that person.

3212004 (3) An application under subsection (2) may be made on
s. 3(c). behalf of a person entitled to apply under paragraph (a) or (c) of Q

that subsection by-

(a) a Constable; or

(b) any other person, whether or not a member of the
household, with the leave of the Court.

3212004 (4) In determining whether to grant leave under
s. 3(c). subsection (3)(b), the Court may take into account whether or

not-

(a) the application is-

(i) in accordance with the wishes; or

(ii) in the best interests,

of the person entitled to apply; and

(b) there is any conflict between the i~terests of the person
seeking leave and the person entitled to apply.

Protection Orders

Application 4.-(1) Application may be made to the Court for a
for protection
order.

protection order to prohibit the respondent-

(a) from entering or remaining in the household residence
of any prescribed person; or

(b) from entering or remaining in any area specified in the
order being an area in which the household residence
of the prescribed person is located; or

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DOMESTIC VIOLENCE

(c) from entering the place of work or education of any
prescribed person; or

(d) from entering or remaining in any particular place; or

(e) from molesting a prescribed person by-

(i) watching or besetting the household residence,
place of work or education of a prescribed
person;

(ii) following or waylaying the prescribed person in
any place;

(iii) making persistent telephone calls to a
prescribed person;

(iv) using abusive language to or behaving towards
a prescribed person in any other manner which
is of such nature and degree as to cause
annoyance to, or result in ill-treatment of the
prescribed person; or

(v) damaging any property owned by, or available 3212004
for the use or enjoyment of, the prescribed S. 4(a).

person, or any propepy in the care or custody or
situated at the residence of the prescribed
person.

(2) On hearing an application under subsection (I),
the Court may make a protection order if it is satisfied that-

(a) the respondent has used or threatened to use, violence
against, or caused physical or mental injury to, a
prescribed person and is likely to do so again; or

(b) having regard to all circumstances, the order is
necessary for the protection of a prescribed person.

(3) A protection order may be made on an ex parte
application if the Court is satisfied that the delay that would be

3212004 caused by proceeding on summons would or might result in- ,,
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DOMESTIC VIOLENCE

( a ) risk to the personal safety of a prescribed person; or

(b) serious or undue hardship,

and any protection order made on an ex parte application shall
be an interim order.

(4) Where a protection order is granted on an ex parte
application, it shall be served personally on the respondent who
may apply immediately for it to be discharged.

3212004 (5) In making a protection order under this section or an
s. 4 ( ~ ) . occupation order under section 7, the Court may at the same

time, of it own volition or upon the application of any party
applying for the order, make an order, in accordance with the
provisions of the Maintenance Act, for the maintenance of-

( a ) any applicant entitled to be maintained by the
respondent; or

(b) any member of the household in respect of whom the
applicant is entitled to apply for maintenance as against
the respondent,

if no such order for maintenance is already in force:

Provided that the duration of an order for maintenance urider
this section shall not exceed the duration of the protection order
made under this section or the occupation order made under
section 7, as the case may be.

Breach o f 5-41) Where a protection order, whether interim or
protection
order. otherwise, is made and-

(a) it is served personally on the respondent; and

(b) the respondent contravenes the order in any respect,

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DOMESTIC VIOLENCE 9 1

the respondent commits an offence and is liable on conviction to
a fine not exceeding ten thousand dollars or to imprisonment for
a term not exceeding six months or to both such fine and
imprisonment.

(2) Subject to the provisions of this section, where a
protection order is in force, a Constable may arrest without
warrant a person whom he has reasonable cause to suspect of
having committed a breach of the order.

(3) No person shall be arrested pursuant to this
section unless a Constable believes that the arrest of that
person is reasonably necessary for the protection of the
prescribed person.

(4) For the purposes of subsections (2) and (3), the
Constable shall take into account-

(a) the seriousness of the act which constituted the alleged
breach;

(b) the time that has elapsed since the alleged breach
was committed; and

(c) the restraining effect of other persons or circumstances
on the respondent.

(5) Where an arrest is made under this section-

(a) the person arrested shall be entitled to make a
telephone call to one person of his choice, not
being the applicant;

(b) the Constable who makes the arrest shall ensure
that the person arrested is informed, at the time
of arrest, of the right conferred by paragraph (a);
and

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10 DOMESTIC VIOLENCE

(c) the person arrested shall be brought before the
Court within a period of forty-eight hours begin-
ning at the time of his arrest.

Duration and 6.-(1) A party to the proceedings may apply to the Court for
d~scharge of
protection a discharge of a protection order.

0
order.

(2) A copy of an application made under subsection
(1) shall be served personally on each person who was a
party to the proceedings in which the original order was
made.

(3) In determining whether to discharge a protection
order the Court shall have regard to the matters referred to
in section 4 (2).

Occupation Orders

Application 7.-(1) Application may be made to the Court by or on behalf
for a grant of
occupation of a prescribed person for an occupation order granting the
order. prescribed person named in the order the right to live in the

household residence.

(2) Subject to subsection (3), the Court may, on an
application under subsection (I), make an occupation order
granting to the prescribed person, for such period or periods
and on such terms and subject to such conditions as the
Court thinks fit, the right to occupy the household residence.

(3) The Court may make an order under subsection
0

(2) only if the Court is satisfied that such an order-

(a) is necessary for the protection of the prescribed
person; or

(b) would be in the best interest of a child.

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DOMESTIC VIOLENCE 10.01

8.-(1) An occupation order may be made on an ex parte ~ x p a r - t e
application if the Court is satisfied that- application for occupa-

tion order.

(a) the respondent has used violence against or caused
physical or mental injury to a prescribed person; and

(b) the delay that would be caused by proceeding on
summons could or might expose the prescribed person 3212004
to physical injury. S. 5.

(2) An occupation order made on an ex parte appli-
cation shall be an interim order and shall be served person-
ally' on tbe respondent.

(3) Where the Court grants an occupation order on
an ex parte application, the Court shall at the same time
make an interim protection order unless it considers that
there are special reasons why such an order should not
be made.

(4) An occupation order which is made on an ex parte
application while the prescribed person and the respondent
are living together in the same household residence shall
expire-

(a) on the discharge of the order by the Court; or

(b) on the discharge of an interim protection order made
pursuant to subsection (3).

(5) Where an occupation order is made on an ex parte
application, the respondent may apply for variation or discharge
of that order.

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10.02

Effect of
occupation
order.

Variation of
discharge of
occupation

1 order.

Procedure
relating to
occupation
orders.

Power of
Court to make
ancillary
order.

DOMESTIC VIOLENCE

9. Where an occupation order is made the prescribed person
to whom it relates shall be entitled, to the exclusion of the
respondent, personally to occupy the household residence to
which that order relates.

10. The Court may, if it thinks fit, on the application of 0
either party, make an order-

(a) extending or reducing any period specified by the
Court pursuant to subsection (2) of section 7; or

(b) varying or discharging any terms and conditions
imposed by the Court pursuant to that subsection.

11.-(1) Before making an occupation order (other than an
interim occupation order) the Court shall direct that notice be
given to any person having an interest in the property which
would be affected by the order.

(2) The person referred to in subsection (1) shall, upon
being notified pursuant to that subsection, be entitled to appear
and be heard in the matter of the application for the occupation
order as a party to that application.

12.-31) Subject to subsection (2), the Court may on or after
making an occupation order, make an order granting to the 0
applicant the use of all or any of-

(a) the furniture;

(b) the household appliances; and

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DOMESTIC VIOLENCE

(c) household effects,

11

in the household residence to which the occupation order
relates for such period and subject to such terms and con-
ditions as the Court thinks fit.

(2) An order made under subsection (1) shall con-
tinue in force for a period of three months from the date
of the making thereof unless the Court otherwise directs
but shall expire before that period if the occupation order
expires or is discharged.

PART 111. GeneraZ

13.41) Every interim order made under this Act on an zgkm
ex parfe application shall specify a date for a hewing which
shall be as soon as reasonably practicable thereafter to
determine whether an order shall be made in substitution
for the interim order.

(2) The copy of an interim order which is served
on the respondent shall notify the respondent that unless
the respondent attends Court on the date specified therein
to show cause why an order should not be made in sub-
stitution for the interim order, the Court may discharge
the interim order and make an order in substitution therefor.

(3) At the hearing referred to in subsection (1) the
Court may-

(a) discharge the interim order;

(b) discharge the interim order and make an order in
substitution therefor; or

(c) on good cause being shown, adjourn the hearing
to such date and place as the Court may specify.

(4) Where a hearing is adjourned under subsection
--

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12 DOMESTIC VIOLENCE

Conduct of
proceedings.

Standard
of proof.

Restriction
of publica-
tion of
proceedings.

(3) (c) the Court shall, at the adjourned hearing, exercise
either the power conferred by paragraph (a) or (b) of that
subsection.

(5) In this section-
“interim order” means an interim protection order or

interim occupation order, as the case may be;
“order” means a protection order or an occupation

order, as the case may be, not being an interim
order.

14.-(1) No person shall be present during the hearing
of any proceedings under this Act unless such proceedings
are criminal proceedings or the person is-

(a) an officer of the Court;
(b) a party to the proceedings;
(c) the attorney-at-law for a party to the proceedings;
(d) a witness; or
(e) any other pxson permitted by the Judge to be

present.

(2) Any witness shall leave the courtroom if asked
to do so by the Judge.

(3) Nothing in this section shall limit any other
power of the Court to hear proceedings in camera or to
exclude any person from the Court.

15. Every question of fact arising in any proceedings
under this Act (other than criminal proceedings) shall be
decided on a balance of probabilities.

16.-(1) Subject to subsection (4), no person shall publish
any report of any proceedings under this Act unless he is
first granted leave of the Court which heard the proceedings.

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DOMESTIC VIOLENCE

(2) Every person who contravenes subsection (1)
commits an offence and is liable on summary conviction
to a fine not exceeding twenty-five thousand dollars.

(3) Nothing in this section limits-
(a) the provisions of any other enactment relating to

prohibition or regulation of the publication of
reports or particulars relating to judicial proceed-
ings; or

(b) the power of the Court to punish any contempt
of Court.

(4) This section shall not apply to the publication

(U) is of a bona fide professional or technical nature;
or

(b) is intended for circulation among members of the
legal or medical professions, officers of the Public
Service, psychologists, marriage counsellors or
social welfare workers.

of any report in any publication that-

17. In any proceedings under this Act, the Court may Orders by
consent. make an order by the consent of all the parties to such

proceedings.

18. The Court may, on making an order under this Act, aunseuiag.
recommend that either or both parties participate in
counselling of such nature as the Court may specify.

Appeals. 19.-(1) Any person aggrieved by-
(a) the making of an order by the Court; or
(b) the refusal of the Court to make an order,

may appeal to the Court of Appeal.

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14 DOMESTIC VIOLENCE

Protach'on
of
mortgagee.

Matrimonial
Causes Act.

Rules of
court.

(2) Except where the Court which makes an order
under this Act otherwise directs, the operation of such order
shall not be suspended by virtue of an appeal under this
section, and every such order may be enforced in the same
manner and in all respects as if no appeal under this section
were pending.

20.41) The rights conferred on any person in respect
of any property by an order made under this Act shall
be subject to the rights of any other person entitled to the
benefit of any mortgaga, security, charge or encumbrance
affecting the property if such mortgage, security, charge
or encumbrance was registered before the making of the
order or if the rights of the person entitled to the benefit
arise under an instrument executed before the date of the
making of the order.

(2) Notwithstanding anything in any enactment or
in any instrument, no money payable under any such
mortgage, security, charge or encumbrance shall be called
up or become due by reason of the making of an order
under this Act.

21. This Act shall not affect the power of the Supreme
Court to make orders under section 10 of the Matrimonial
Causes Act.

22. Rules of Court may be made by the Rules Committee
constituted under the Judicature (Resident Magistrates) Act
for the purpose of regulating the practice and procedure
of the Court in proceedings under this Act providing for
such matters as are necessary for giving full effect to the
provisions of this Act and for the due administration
thereof.

~-
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