According to DBM Attorneys, it is not uncommon to observe domestic violence instances flaring up when a couple is in the process of divorce and still living together. The law firm begins by saying, “Fortunately, the Domestic Violence Act, Act 116 of 1998 (“Act”) was enacted to provide the victims of domestic violence protection from domestic abuse to the extent that the law can provide.”
Highlighting, the Act is progressive and recognises domestic violence for the serious social ill it is, by including several actions in the definition of domestic violence. Some examples include physical, sexual, emotional, verbal and psychological abuse; economic abuse and intimidation, and harassment.
When looking at the process to follow; DBM Attorneys explains, one of the first steps is obtaining an interdict—stating an interdict granted in terms of the Act, will usually take the form of listing specific things the other person may not do. For example, they may no longer insult, harass or intimidate the Complainant.
Failing to comply with the interdict, will result in the person against whom the interdict was granted (“Respondent”) being charged with a criminal offence. If convicted, said person would be ordered to pay a fine and/or could be sentenced to prison for a period not exceeding five years.
Moreover, Section 7(1)(c) of the Act explicitly provides that the Respondent may be prevented from entering a shared residence. This is if it appears to be in the best interest of the Complainant. “Our courts have considered the irregular nature of such an order, and have held that, particular care must be taken to ensure that the granting of such an order is justified and truly necessary.”
Meaning, at the very least, the following must be taken into account:
- The potential prejudice that could be suffered by the Respondent, and the Respondent’s children should the order be granted.
- The Respondent’s ability to obtain alternative accommodation and his / her financial resources.
- Should there be children involved, the Respondent’s access to his / her children in the event of an eviction order being granted.
- The Court must be sure the Respondent understands an eviction order is being considered, and they must be granted the opportunity to obtain legal representation if they so wish.
The law firm expounds further, explaining the Court also referred to possibly achieving a similar result, such as stopping the abuse, in a different and less intrusive or extreme way. An example of this is to apply for an interdict to stop the Respondent from insulting and verbally abusing the Complainant and to see whether the same is not sufficient to stop the abusive behaviour.
With the above in mind, it is possible to obtain an order preventing one partner from entering a shared residence. Still, such an order will not be given lightly or even always immediately. However, every case warrants its own consideration. Therefore, you should consult your attorney or family law advisor for detailed advice regarding your situation.
What are your thoughts on the matter? Are you or a friend dealing with an abusive divorce? Share your views with us in the comment section below.
