![Show Menu](styles/mobile-menu.png)
![Page Background](./../common/page-substrates/page0135.jpg)
GAZETTE
SEPTEMBER 1979
The Domestic Violence Jurisdiction
of the District Court and the
Magistrates
9
Courts
Gabriel J. McCann, B.A. Mod. (Dublin). LL .M. (Yale), Barrister-at-law
The exclusion of a spouse from occupation of the
family home often has very serious consequences. As a
result of recent legislation in Ireland and England, District
Justices and magistrates are empowered to order the
eviction of spouses whose behaviour is intolerable.
The purpose of this article is to examine the relevant
legislative provisions governing the jurisdiction of the
District Courts and the magistrates' courts.
Prior to the coming into force of the
Domestic
Proceedings
and Magistrates'
Courts Act
1978,
magistrates' Courts in England were virtually powerless
to control domestic violence. They had to rely on the non-
cohabitation clause (the so-called separation order). The
principal deficiency of the cohabitation clause was that
although the applicant was no longer bound to cohabit
with her husband, it did nothing to remove him from the
matrimonial home. He was free to remain in, or to re-
enter, the matrimonial home.
Section 16
1
of the 1978 Act abolished the separation
order and substituted instead the concepts of the personal
protection order and exclusion order.
2
The English reform bears some similarity to recent
changes in Irish law. These changes are contained in
section 22 of the
Family Law (Maintenance of Spouses
and Children) Act 1976.
The section is based on a
recommendation made by the Committee on Court
Practice and Procedure, in its 19th Interim Report,
entitled
Desertion and Maintenance
(Prl. 3666, Feb.
1974)
3
The central privision of S.22 is as follows:
"(1) On application to it by either spouse, the Court
may, if it is of opinion that there are reasonable
grounds for believing that the safety or welfare of
that spouse or of any dependent child of the family
requires it, order the other spouse, if he is residing at
a place where the applicant spouse or that child
resides, to leave that place, and, whether the spouse
is or is not residing at that place, prohibit him from
entering that place until further order by the Court
or until such other time as the Court shall specify".
A number of points may be noted. First, either party to
a marriage may, whether or not an application is made
for a maintenance order under the Act, apply under the
section.
4
This is consistent with the general policy of the
Act and of other recent legislation directed at removing
legal differences based on sex.
5
Second, where the safety or welfare of a child requires
it a spouse may apply to the court under the section.
6
Thirdly, "[elither spouse may apply at any time to the
Court that made it for the discharge of the order under
this section . . . ."
7
On each of these three points the
English legislation is similar to s.22 of our Act.
Important differences do, however, exist between the
two sections. First, provision is made in the English Act
for expedited orders.
8
Subsection (6) of section 16 provides
"Where on an application for an order under this
section the court is satisfied that there is imminent
danger of physical injury to the applicant or a child
of the family, the court may make [a personal
protection order]
9
notwithstanding —
(a) that the summons has not been served on the
respondent within a reasonable time before the
hearing of the application, or
(b) that the summons requires the respondent to
appear at some other time or place, . . . "
no equivalent provisions are contained in the Irish Act. It
has been remarked that
"[t]he major disadvantage of [barring order
proceedings] lies in the length of time that has to
pass before a wife may apply to a court for a
barring order . . . ."
,0
A provision similar to S.16(6) of the English Act could
with benefit be incorporated into future amending
legislation of the 1976 Act. It should, of course, be noted
that under existing law, a spouse threatened by imminent
violence may always apply to the High Court (or the
Circuit Court) for an injunction against the other spouse.
Second, subsection (4) of section 16 provides that
"[w]here the court makes an [eviction or exclusion order]
the court may, if it thinks fit, make a further order
requiring the respondent to permit the applicant to enter
and remain in the matrimonial home".
The purpose of this power is to stop a violent spouse
who is excluded from the home taking steps, such as
interfering with the locks, to prevent the other party who
has fled the home from re-entering and occupying it.
11
Protection against this type of conduct is afforded in Irish
Law, not under S.22 of the
Family Law (Maintenance of
Spouses and Children) Act 1976
but by S.5 of the
Family
Home Protection Act 1976.
12
Third, an order under section 16 of the 1978 Act "may
be made subject to such exceptions or conditions as may
be specified in the order . . ,
13
The court thus has power to
authorise entry into the home for a temporary and limited
purpose, such as, the collection and removal of personal
belongings or clothes.
14
No equivalent power is explicitly provided for under
the Irish 1976 Act. Finally, the court is making a
personal protection order under section 16 "may" include
provision that the respondent shall not incite or assist any
other person to use, or threaten to use, violence against
the person of the applicant, or as the case may be, the
child of the family".
15
137