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Domestic Violence Act 2018: No definition provided, but some useful innovations included

On 12 December 2018, S.I. 532/2018 was signed by the Minister for Justice and Equality, Charlie Flanagan. Cited as the Domestic Violence Act (Commencement) Order 2018, this statutory instrument enacted the named legislation from 1 January 2019.

Section 5(2) of this act lays out a non-exhaustive list of 17 factors to be taken into consideration in the context of court proceedings for ‘specified orders’, including: any previous convictions, any history of violence inflicted by the respondent on the applicant or a dependent person, any history of animal cruelty and so forth.

To the dismay of practitioners and academics alike, the Act contains no hard and fast definition as to what constitutes domestic violence. Indeed, it is quite strange for a piece of legislation to be wholly concerned with one issue yet fail to provide a definition for it. That said, a number of other bodies have provided definitions.

In a May 2017 submission, the Law Society suggested that a sweeping definition of domestic violence should be adopted to include: ‘all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit, including online stalking and harassment’. However, the latter section of this definition could be seen as going too far, particularly as what constitutes ‘online stalking’ is not readily ascertainable.

Similarly, in Art 3 of the Istanbul Convention, domestic violence is described as meaning ‘all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim’.

That said, the Act does contain a number of innovations, chief among these being the ‘emergency barring order’ legislated for in s 9. This order may be applied in circumstances where the applicant is not the spouse of the respondent and where their ownership stake in the shared property is lower than that of the respondent. Crucially, there must be an immediate risk of significant harm to the applicant or a dependent person – ie, a child.

Emergency barring orders may prohibit the respondent from doing one or more of the following, subject to the discretion of the court:

  • using or threatening to use violence against, molesting or putting in fear, the applicant or a dependent person;
  • attending at or in the vicinity of, or watching or besetting, a place where the applicant or a dependent person resides;
  • following or communicating (including by electronic means) with the applicant or a dependent person.

These orders may be granted ex parte and the maximum duration is 8 working days.

 

For more on family law issues like this, our upcoming title, Divorce and Judicial Separation Proceedings in the Circuit Court: A Guide to Order 59 by Keith Walsh will be released in June 2019 and may be pre-ordered here.

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