Court protection ends on divorce

Press, 30 November 1978, Page 10

Court protection ends on divorce

Non-molestation orders, issued by the Courts to protect separated marriage partners and their dependant children, lapse when a couple divorces.

In a test case in Christchurch recently, Mr F. G. Paterson, S.M., dismissed a charge of breaching a non-molestation order. He ruled that the divorced couple had ceased to be husband and wife in .April so there was no nor.-mo-lestation order in existence when the alleged ofc fence occured in September.

A Christchurch lawyer, Mr O. T. Alpers, said that many people would be surprised to learn that the orders ceased to have any validity after divorce. The decision would affect several of his clients, he said. He would like to see a

change in the law. “There is no reason why a nonmolestation order should end in divorce. I think in many cases it is necessary after that time,” he said. However, the Family Proceedings Bill, which has been drawn up to replace the Matrimonial Proceedings Act, 1963, and the Domestic Proceedings Act, 1968, would make this change. It says that a n o n-molestation order ceases to have any effect if the parties freely resume cohabitation, or if the Court, on the application of either party, orders that it be diss charged. The bill, if it is passed, is not likely to take effect until 1980. Dr John Church, a spokesman for the Battered Women’s Support Group, said that he had

always understood that the orders lapsed when a divorce became absolute under the present legislation. He knew of several women who needed further protection now that their divorces had become final.

Another Christchurch lawyer, Mr D. M. Palmer, said that he was surprised that the point had not been argued before. There was some practical sense in continuing a non-moles-tation order after a divorce, he said. However, the need for such orders was always greater in the early stage of the separation. “When a marriage breaks up people tend to act irrationally,” he said.

“At the time of divorce things have usually settled down.”

He estimated that only one in several hundred would require a non-mo-iestation order or a sim» ilar safeguard after divorce. (The figure would be about one in 20 during separation, he said.) Mr Alpers said that in at least a quarter of domestic cases, non-moles-tation orders were sought for protection during separation. Continuing problems between former marriage partners were more likely to continue where the divorce had been concluded rapidly such as on the ground of adultery. “Why should people have to get an injunction?” he asked. There had to be good grounds for the Court to grant a non-molestation order during separation. When this lapsed one

partner risked being physically abused before an injunction could be issued. Assuming the Magistrate’s decision holds, Mr Palmer believes that there could be a few more injunctions in the Supreme Court from those seeking further protection. There is little delay in obtaining an injunction and the penalties are open-ended. The maximum penalty for breaching a non-molestation order is up to three months imprisonment, a $4OO fine, or both. Under section 23 of the Domestic Proceedings Act, 1968, the Court may grant a non-molestation order if it is satisfied that such an order is necessary for the protection of the applicant, or child of the family after a separation order or where the husband and wife are living apart. When the order is in force, the person against whom it is made cannot enter any land or building occupied by the applicant. The person may not watch the applicant’s house or work, make persistent telephone calls, or waylay her (or him), or their children. The Domestic Proceedings Act says that the n o n-molestation order shall cease to have any effect if any separation order or separation agreement ceases to be in force, or if the husband and wife voluntarily resume living together, or if the Court, on the application of either party, orders that it be discharged. “Having regard to the act as a whole, and section 23 in particular, I am satisfied that a non-moles-tation order must come to an end with the termination of a marriage,” said tine Magistrate.

It was a protection available only to husband and wife in certain circumstances. As between other citizens, an injunction or other remedy must be used. “While subsection (5) does not spell this out, it is implicit in the nature of the Domestic Proceedings Act,” he said.

However, a divorced partner, not governed by a non-molestation order or injunction, cannot be charged with trespass if the property is in that person’s name under either single or joint ownership.