NCJ Number
70216
Journal
Irish Jurist Volume: 13 Dated: (Winter 1978) Pages: 233-253
Date Published
1978
Length
21 pages
Annotation
The article compares the 1976 provisions enacted by the legislatures in the Republic of Ireland and England which afford varying degrees of protection to victims of marital violence.
Abstract
Legal remedies prior to 1976 included civil actions, criminal proceedings, and injunctions; but in practice all were of little value to victims of domestic assault in Ireland and England. The Irish and English legislatures addressed the problems by passing the Family Law Act and the Domestic Violence and Matrimonial Proceedings Act, respectively; these provisions increased the court's jurisdiction to exclude a violent spouse from the home and to streamline the procedure for obtaining this order. In the Irish Republic, the District, Circuit, and High Courts all have jurisdiction, but applicants for an exclusion order are encouraged to begin proceedings in the lower Circuit Court. The Magistrate, County, and High Courts in England may grant exclusion orders. While only a spouse may apply for an exclusion order in Ireland, either party to a marriage or a man and woman who are living together as husband and wife may request relief in England. Grounds for relief in the Irish provision concern the safety and welfare of the applicant or dependent child. The English law does not provide such criteria, but courts will probably follow previous decisions which evaluate the welfare of the family and interests of the children. The Irish court can order the violent spouse to leave the place where the applicant or a dependent child of the family reside and can prohibit his return. The wording of the statute could result in District Courts determining custody and access rights; but this was not the intent of the legislation. In contrast, the English provisions on injunctions refer to matrimonial home rather than place, thus distinguishing between protection of a spouse and protection of a child. In Ireland the penalty for defying an exclusion order is civil contempt, but the police have not authority to arrest or detain until the applicant returns to court and obtains an enforcement order. The English law provides for speedy intervention upon breach of the injunction by attaching the power of arrest to such orders when the possibility of bodily harm is suspected. Because of its attitudes toward extramarital unions and injunction policies, the English law is likely to prove more effective than Ireland's. Examples of relevant judicial decisions and footnotes are provided.