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EVERYDAY LAW: Dealing with domestic violence

Cecil McCarthy

EVERYDAY LAW: Dealing with domestic violence

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Commencing in 1991, when domestic violence legislation was enacted in Trinidad and Tobago, Caribbean countries have introduced similar legislation aimed primarily at providing protection for the victims.   
Barbados was fairly quick in following the lead of Trinidad and Tobago with the Domestic Violence (Protection Orders) Act being passed in 1992. 
One of the likely consequences of the early passage of the act was that, like most pieces of legislation attempting to control social behaviour, it would need to be reformed to keep pace with the demands that are required by the experience of its implementation.
It is partly for this reason that in my last article I urged the establishment of a law reform commission which could more quickly identify weaknesses in legislation and propose reforms for enactment.   
In respect of domestic violence laws in the Caribbean, one constant criticism has been that the initial legislative efforts failed to take fully into account Caribbean realities such as the high incidence of visiting relationships as well as the potential for conflict where people have a child in common but live apart, and because the child may need to interact with each other on a regular basis.
The focus of the early efforts with respect to domestic violence legislation has been on persons living in a household.
When one considers that the traditional meaning of household in matrimonial proceedings connotes some shared domestic obligations such as household chores and living arrangements, it is arguable that where these do not exist, a person is not a member of the household and may not be subject to the protection of the legislation.  
It is submitted, therefore, that since the legislation is intended to offer protection in a domestic context, it should ensure that the definition begins by capturing any person who is resident at the premises.     
In 1999 the Trinidad parliament felt the need to amend their domestic  violence legislation to provide greater “protection for victims of domestic violence”. The preamble to that legislation reads in part: 
“Whereas incidents of domestic violence continue to occur with alarming frequency and deadly consequences,  
And whereas it has become necessary to reflect the community’s repugnance to domestic violence in whatever form it may take and further influence the community’s attitude and support social change in respect of this social ill,                                    
And whereas the government is of the view that one way to achieve these goals is to strengthen legislation to ensure a prompt and equitable legal remedy for domestic violence . . . .”  
The act introduced, among other things, a definition of visiting relationship to capture intimate relationships where people are not habitually resident in the same household.   
Section 3 provides that a “visiting relationship means a non-cohabitational relationship which is otherwise similar to the relationship between husband and wife”.
Section 4(2)(g) then permits a person who is or has been in a visiting relationship with a person of the opposite sex for a period exceeding 12 months to apply for a protection order. 
Section 4(2)(f) empowers a person who has a child in common with the respondent to apply for a protection order. 
It is not readily apparent why the period of 12 months is required to establish a visiting relationship.
In our context in which the fires of intimacy can burn with the rapidity and intensity of a bush fire and evaporate almost as quickly, it may well be inappropriate to put a timeline on the duration of the relationship.That apart, it is my opinion that both of the above provisions will improve our legislative regime.
• Cecil McCarthy is a Queen’s Counsel.