Successive governments have made changes in the law and policy to address the perennial problem of domestic violence. Consequently, the law on domestic violence has evolved over the years in varying attempts to afford reasonable protection to people who are experiencing relationship breakdown as a result of domestic violence. With the promulgation in 1996 of Family Law Act, the erstwhile laws and legislation in this realm (which were generally considered as practically disharmonious and near impossible to enforce) was unified and made more relevant and effective.
As short-term protective recourse, the introduction of FLA brought about the reinvigoration of two injunctive orders, which victims of domestic violence can apply for before a magistrate, county, or high court. This application could be made within 48hours of a domestic violence assault to protect the victim and or a relevant child. Also, the introduction of the Protection from Harassment Act 1997 brought into existence an injunctive order to prohibit harassment, physical or verbal threat or fear of violence.
On a long-term basis, new stipulation on divorce as contained in FLA 1996 specified a 'cooling of period' for married couple intending on divorce. This new procedure was informed by the government thinking on the need to give separating couples some time to think through the implications of their intention. And more importantly, to encourage reconciliation and resolution rather than an immitigable rush to separation.
Nonetheless, despite the obvious good intention of the government and lawmakers in promulgating these laws, there are still flurry of anomalies and loopholes inherent within the laws that applied in when a relationship breaks down as a result of domestic violence. It is my remit within this essay to highlight these flaws and the glaring implications and impact on real individuals in dire situation of life and death; homelessness and desolation; psychological breakdown and mental despair.
THE LAW AND DOMESTIC VIOLENCE
Violence is a criminal offence, and the fact that it's committed at home does not ameliorate its distaste and unacceptance before the law. Nonetheless, the purpose of the criminal law is to punish the offender and (in most cases) does little or nothing to protect the victim. Violence committed within the home and/or during relationship breakdown is like any other form of violence or assault since the victim and the perpetrator are intimately known to each other.
Oftentimes, a conjugal or cohabiting relationship may exist or have existed between the perpetrator and the victim and in some cases; their union may have been consummated with a child or children. Consequently, relationship breakdown as a result of domestic violence requires more than criminal prosecution of the perpetrator, there are overwhelming need for accessible, hassle-free and costless legal and injunctive protection that victim could seek as interim recourse.
In this vein, victims of domestic violence where a current or erstwhile relationship has broken down can seek both an emergency/short term and long term remedies under variant civil, criminal, and statutory laws. REMEDIES UNDER THE CIVIL LAW Emergency / short term measures The advent of the Family Law Act 1996 Part IV reinvigorated a set of civil interlocutory injunctive orders (non-molestation order and occupation order) for victims of domestic violence. The act also clarified and unified the law as it applied to these orders and victims of domestic violence.
In addition, it also expanded the categories of people who can apply for these two orders and introduced innovations such as third party applications; the use of power of arrest and warrant of arrest. Non-molestation Injunctive Order (Family Law Act 1996 Part IV – Section 42) A non-molestation injunctive order prohibits a person (the respondent) from molesting another person (the applicant) who is associated with the respondent and/or prohibits the respondent from molesting a relevant child.
'Associated person' such as a spouse, a cohabitee or a relevant child can apply to the magistrate court or a county or high court for this order as a stand-alone application or in the course of other family proceedings. The order is usually imposed for a specified period or until further order. A court could pronounce a non-molestation order in an ex-parte application where the overriding need is to secure the health and safety as well as the well being of the applicant and/or a relevant child.
The possibility of an ex-parte application makes a non-molestation injunctive order easily accessible to victims of domestic violence for an interim injunction. The provision within the proceedings for an undertaking from the respondent, possibility of a power of arrest attached to the order and the existence of an executable warrant of arrest together with a possible eventuality of imprisonment or fine for breaches or contempt of court makes non-molestation order an effective interim order.
Occupation Order (Family Law Act 1996 Part IV – Section 33) An application for this order can be made by an 'associated person' in a magistrate court, County or High court. However, the provisions of the order depend on the nature of tenancy tenure, marital status, which of the parties has matrimonial home right and whether there are children within the household. Different kind of relationships are treated differently under this law, consequent of which varied provisions could be made depending on the prevalent circumstances within each case.
The range of permitted applicants for an occupation order is narrower than for a non-molestation order. There are the entitled and the non-entitled categories of applicants which is consequent on the 'entitled' or the 'non-entitled' person's application order in terms of range of stipulations, length and possible extension of the order. The Children Act 1989 (Emergency Protection Order with Exclusion – Part V Section 44) & Family Law Act (Amendments of Children Act 1989 -Part IV Section 52)
A person experiencing relationship breakdown as a result of domestic violence with a relevant child involved can apply to the magistrate court, county, or high court as an authorized person for an Emergency Protection Order with an exclusion requirement. Where the court has reasons to believe that the exclusion of a 'relevant person' (the perpetrator) from a dwelling house would diminish the possibility of a child suffering a 'significant harm'.