Divorce Article 7: The Domestic Violence Act 116 of 1998

The Domestic Violence Act 116 of 1998 

In our previous article, we considered what interim relief is available to a party seeking a divorce. In this article, we shall consider the Domestic Violence Act 116 of 1998 (“the Act”).

It is a reality that divorce can cause emotions of many types and unfortunately violence can be one of them. If a spouse is seeking a divorce for this reason or believes that violence may occur it may be necessary to seek protection from the Court. However, it should be noted that violence in the context of the Act is not only limited to physical violence. The Act defines violence as the following:-

  1. physical abuse;

  2. sexual abuse;

  3. emotional, verbal and psychological abuse;

  4. economic abuse;

  5. intimidation;

  6. harassment;

  7. stalking;

  8. damage to property;

  9. entry into the complainant's residence without consent, where the parties do not share the same residence; or

  10. any other controlling or abusive behaviour towards a complainant,

where such conduct harms or may cause imminent harm to, the safety, health or wellbeing of the complainant.

While each of the above contains its own further definition it is not necessary for the purposes of this article. The procedure entails the Complainant (the person suffering from the harm or potential harm) making an application to the Court supported by various contentions that supports the claim. The Court must consider the application as soon as possible. If the Court finds that the Complainant requires immediate protection then an interim (temporary) domestic violence protection order is granted. When this is ordered a warrant of arrest is issued and delivered to the police station in which the Respondent resides. If the Respondent breaches the interim order, the police may act on the warrant and arrest the Respondent.

Once the interim order is granted the application and order must be served on the Respondent and a return date set. A return date is a date on which it must be argued that the interim order must be made final. In accordance with the law, the Respondent must be able to defend himself and answer to the Complainant’s claim. Here there are only two outcomes possible. First, the interim order is made final or second, the interim order is set aside and is no longer in force. This will include the warrant issued under the interim order.

If however, the court finds that the Complainant does not require immediate protection or requires further information then the return date is set without issuing an interim order or warrant of arrest.

Due to this and the nature of the protection required in divorce proceedings, it is highly recommended that an attorney is approached to assist you.

***Kindly note that the contents of this article are intended for information purposes only and does not constitute legal advice. Please consult an attorney.

In our next few articles, we shall consider the various aspects of an opposed divorce including applicable legislation commencing with the rights of children and the Family Advocate.