The Gazette 1979

SEPTEMBER 1979

GAZETTE

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

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