137 / 244
GAZETTE
SEPTEMBER 1979
of the family that an order should be made under this subsection,
the court may make one or both of the following orders, that is to
say —
(a) an order that the respondent shall not use, or threaten to use,
violence against the person of the applicant.
(b) an order that the respondent shall not use, or threaten to use,
violence against the person of a child of the family.
(3) Where on an application for an order under this section the
court is satisfied —
(a) that the respondent has used violence against the person of
the applicant or a child of the family, or
(b) that the respondent has threatened to use violence against
the person of the applicant or a child of the family and has
used violence against some other person, or
(c) that the respondent has in contravention of an order made
under subsection (2) above threatened to use violence against
the person of the applicant or a child of the family,
and that the applicant or a child of the family is in danger of being
physically injured by the respondent (or would be in such danger if
the applicant or child were to enter the matrimonial home) the court
may make one or both of the following orders, that is to say —
(i) an order requiring the respondent to leave the matrimonial
home;
(ii) an order prohibiting the respondent from entering the
matrimonial home.
(4) Where the court makes an order under subsection (3) above, 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.
2. Section 16 was yet a further legal response to the widely publicised
phenomenon of family violence. Jurisdiction in regard to domestic
violence had been conferred on the county courts and the High
Court by an earlier Act, the
Domestic Violence and Matrimonial
Proceedings Act 1976.
Both S. 10 of the 1976 Act and S. 16 of the 1976 Act have been
the subject of extensive comment and there is a large literature on
each of the Acts. See, e.g., D. Lasck, "Domestic Violence and
Rights of Property" (1978) 128 N.L.J. 124-125, 539-540; M. D.
A. Freeman, "Violence in the Home — More New Legislation"
(1978) N.L.J. 924-925; Margaret Rutheford "Domestic
Proceedings in Magistrates' Court — The New Law" (1978) 8
Family Law
164-167, 166. Margaret Spencer, "The Domestic
Proceedings and Magistrates' Courts Act 1978 - II" (1978) 128
N.L.J. 750-752, Brian Harris "The New Matrimonial Law of
Magistrates - II" (1978) 128 N.L.J. 1023-1026; Margaret
Rutherford "Domestic Violence and Cohabitees" (1978) 128
N.L.J. 379. On domestic violence generally, see Mary Hayes
"Evicting a Spouse from the Matrimonial Home" (1978) 8 Fam.
Law 4-7; 41-46; M. L. Parry "Somewhere to Live: Excluding the
Husband from Occupation of the Matrimonial Home" (1975) 5
Fam. Law 165.
3. "If the Court finds on the evidence offered that a spouse has
reasonable grounds for believing that the safety or welfare of the
family requires it, the Court should have power to make an order
prohibiting the defaulting spouse from entering or attempting to
enter the family home "until further order" and from in any way
molesting, annoying or putting in fear the family or any member of
it" (para. 46).
4. Section 22(1) of the Irish 1976 Act and Section 16(2) of the 1978
Act.
5. E
.g.,
the
Married Women's Status Act 1957,
the Succession Act
1965, the
Family Home Protection Act 1976. See
also, The Law
Reform Commission Working Paper No. 5 - 1978,
The Law
Relating to Criminal Conversation and the Enticement and
Harbouring of a Spouse
p. 7.
Section 22(1) of the 1976 Act and Section 16(2) of the 1978 Act.
7. Section 22(2) of the 1976 Act. Section 17(1) of the 1978 Act
provides that "[a] magistrates' court shall, on an application made
by either party to the marriagein question, have power by order
to
vary or revoke
any order made under section 16 of this Act"
(Emphasis supplied).
Section 16(6) - (8) and Section 17(3) of the 1978 Act. The
expedited order cannot be made in the case of an exclusion order.
The personal protection order (the term is not actually used in the
statute: it is the English Law Commission's term. The Law
Commission Report No. 77 (1976),
Report on Matrimonial
Proceedings in Magistrates Courts
(para. 3.13)) may be made
where the court is satisfied that the respondent has used or
threatened violence against the applicant or a child of the family
and it is necessary that an order be made for their protection.
10. A Shatter,
Family Law in the Republic qf Ireland,
p. 306.
11. This power was added during the passage of the Bill through
Parliament with the agreement of the Law Commission and of the
President of the Family Division.
Vide,
B. Harris, "The New
Matrimonial Law of Magistrates II",
supra,
fn. 2.
12. Section 5(1) provides as follows:
"where it appears to the court, on an application of a spouse,
that the other spouse is engaging in such conduct as may lead
to the loss of any interest in the family home or may render it
unsuitable for habitation as a family home with the intention
of depriving the applicant spouse or a dependent child of the
family of his residence in the family home, the court may
make such order as it considers proper, directed to the other
spouse or to any other person, for the protection of the family
home in the interest of the applicant spouse or such child".
See, generally, A. Shatter,
supra,
pp. 290-292.
13. Section 16(9) of the 1978 Act.
14. See paras. 3.25(b) and 3.40(d) of the English Law Commission
Report on Matrimonial Proceedings in Magistrates' Courts
Law
Com. No. 77 (1976).
15. See S. 16(10) of the 1978 Act. This subsection implements the
English Law Commission recommendation at para. 3.25(a).
16. 18. (1) Where a magistrates' court makes an order under section
16 of this Act which provides that the respondent —
(a) shall not use violence against the person of the applicant, or
(b) shall not use violence against a child of the family, or
(c) shall not enter the matrimonial home,
the court may, if it is satisfied that the respondent has physically
injured the applicant or a child of the family and considers that he
is likely to do so again, attach a power of arrest to the order.
(2) Where by virtue of subsection (1) above a power of arrest is
attached to an order, a constable may arrest without warrant a
person whom he has reasonable cause for suspecting of being in
breach of any such provision of the order as is mentioned in
paragraph (a), (b) or (c) of subsection (1) above by reason of that
person's use of violence or, as the case may be, his entry into the
matrimonial home.
(3) Where a power of arrest is attached to an order under
subsection (1) above and the respondent is arrested under
subsection (2) above —
(a) he shall be brought before a justice of the peace within a
period of 24 hours beginning at the time of his arrest, and
(b) the justice of the peace before whom he is brought may
remand him.
In reckoning for the purposes of this subsection any period of
24 hours, no account shall be taken of Christmas Day, Good
Friday, or any Sunday.
(4) Where a court has made an order under section 16 of this
Act but has not attached to the order a power of arrest under
subsection (1) above, then, if at any time the applicant for that
order considers that the other party to the marriage in question
has disobeyed the order, he may apply for the issue of a warrant
for the arrest of that other party to a justice of the peace for the
commission area in which either party to the marriage ordinarily
resides; but a justice of the peace shall not issue a warrant on such
an application unless —
(a) the application is substantiated on oath, and
(b) the justice has reasonable grounds for believing that the
other party to the marriage has disobeyed that order.
(5) The magistrates' court before whom any person is brought
by virtue of a warrant issued under subsection (4) above may
remand him.
17. Section 1(1) of the English
Domestic Violence and Matrimonial
Proceedings Act 1976.
18. Section 18 (l)(c) of the 1978 Act.
19. Section 18(2).
20. Sundays, Christmas Day, and Good Friday are excluded when
reckoning any period of 24 hours. See S. 18(3).
21. A. Shatter, supra, 306 (1977); Coolock Community Law Centre,
Barred.
22. The
District Court / Family Law (Maintenance of Spouses and
Children) Act 1976 / Rules 1976
(S.I. No. 96 of 1976). Rule 39
provides that [a] summons under section 22(3] shall be in
accordance with Form 38.
23.
Id.
Rule 41.
24. A. Shatter,
supra,
307. See generally Coolcok Community Law
Centre,
Barred.
25.
Id.
139