Domestic violence in Ireland was first recognised on the statute books in the Family Law (Maintenance of Spouses and Children) Act, 1976 with the introduction of the first civil remedy for domestic violence.
This act introduced the notion of a “barring order” which is a court order excluding the violent partner/spouse to be excluded from the home.
Domestic Violence Act, 1996
The Domestic Violence Act, 1996 built upon this legislation of 30 years before and sets out three main aims:-
- To protect spouses and children and others in domestic relationships whose safety and welfare is at risk in the relationship;
- To increase the powers of the Gardai to arrest witout warrant in certain situations;
- To allow a Court to hear other related applications, such as for maintenance, custody and access, at the same time as the application for a barring order.
This legislation builds upon the protection offered by the Family Law (Maintenance of Spouses and Children) Act, 1976 to provide protection for non-spouses such as cohabitants and family members.
Domestic violence remedies
It also extended the range of remedies available in cases of domestic violence to include
- A barring order
- An interim barring order
- A protection order and
- A safety order.
A barring order is an order which directs the respondent to leave the premises where the applicant lives and preventing the respondent from returning to the premises until the Court allows. In making a barring order the Court must be satisfied that the safety or welfare of the applicant justifies making the order.
A barring order can last for up to 3 years.
An applicant for a barring order who is not a spouse must have an equal or greater interest in the property than the respondent. In addition to this test the couple must have lived as “husband and wife” for 6 months out of the previous nine months period.
In summary there are 4 types of people who can apply for a barring order:-
- A spouse
- Cohabitants who have lived together for 6 out of the previous 9 months
- A parent of an adult child who is a non-dependent
- The Health Service Executive on behalf of an entitled person.
Interim barring order
An interim barring order is one which a Court can make to cover the period of time between the commencement of legal proceedings and the hearing of the action. The criteria to be applied by a Court is whether the applicant is in immediate risk of significant harm and the granting of a protection orderwould not be sufficient to protect the applicant.
An interim barring order can be applied for on an ex parte basis but will be limited in duration to a maximum of 8 working days in the interests of fair procedure (Domestic Violence (Amendment) Act, 2002).
A protection order does not put the respondent out of the family home but does order him/her not to use violence, threats, molestation or use violence against the applicant. A protection order will only last until the hearing of the barring or safety order proceedings and are available to anyone who has commenced proceedings for a safety or barring order.
A safety order is similar to a protection order but does have a life of it’s own and can last for up to 5 years.
There are two common situations where a safety order is useful:
- Where the applicant is trying to help the respondent deal with, for example, alcoholism but also wishes for protection from violence and
- Where spouses are separated in fact but have not yet applied for a divorce or separation.
Safety orders can be applied for by
- Cohabitants who have lived together for 6 out of the previous 12 months (this was changed in 2011-see below)
- The parents of an adult child
- The HSE.
Breach of Barring Orders
The Domestic Violence Act, 1996 makes provision for a number of useful powers of the Court in domestic violence cases.
1. How breaches of Court orders can be dealt with quickly by the Gardai
2. How the Court can deal with related issues such as access and maintenance without the need to issue new proceedings
3. How any Court Orders take effect.
Breaches of Court Orders
The Gardai have considerable powers of arrest under the Domestic Violence Act, 1996 to enforce Court orders along with their normal powers under various other acts such as Criminal Damage Act, 1991. They can arrest without warrant for example where the victim is someone who could apply for a barring order or safety order.
They also have a duty to investigate and record all reports of incidents of domestic violence.
Courts have the power to deal with access and maintenance along with the substantive issue of a barring order application without the need to issue separate proceedings in respect of access and maintenance.
Generally the guiding principle for the Court in determining access is what is in the best interests of the child. However where there are issues of domestic violence or violence to children this principle takes a back seat to the question of whether the child needs to be protected.
Taking effect of Court orders
The Domestic Violence Act, 1996 provides that any Order made under the Act will take effect by oral notification to the respondent and the provision of a copy of the Court order.
In fact if the respondent is in Court when the order is made this is deemed to be valid notification.
Penalties for Breach of Barring Orders
The penalties for breaching Court orders made under the Domestic Violence Act, 1996 include
• A fine not exceeding £1,500 (approx. €1,905) and/or 12 months imprisonment and is a criminal offence.
In addition the Court has discretion to convict for contempt of Court and breach of an Order may lead to liability in any civil legal proceedings brought.
Update August 2011-Civil Law (Miscellaneous Provisions) Act, 2011
The Civil Law (Miscellaneous Provisions) Act 2011 has made significant changes to the Domestic Violence Act 1996.
Prior to the enactment of this legislation an applicant for a safety order who was a cohabitant ( that is, not a spouse) had to have lived as husband and wife with the partner for a period of 6 out of the previous 12 months.
The requirement now as a result of the Civil Law (Miscellaneous Provisions) Act 2011 is for the applicant who:
(ii) is not the spouse or civil partner within the meaning of the Act of 2010 of the respondent and is not related to the respondent within the prohibited degrees of relationship, but lived with the respondent in an intimate and committed relationship prior to the application for the safety order, or..
The effect of this change is that there is no specific requirement of living together for a particular period of time required. Now it is only necessary to show that the applicant:
lived with the respondent in an intimate and committed relationship prior to the application for the safety order.
By Terry Gorry