Abused wife wants protection

DEAR MRS MACAULAY, I have been in an abusive marriage for years but I’m afraid to leave because my husband controls all the finances and doesn’t want me to work. I also worry about losing custody of our two young children, because he has all the resources. What legal steps can I take to protect myself and the kids while ensuring my continued financial stability? I have been saving what little I can, in preparation for when I do leave.

It is unacceptable for anyone to be forced to live in an abusive relationship and marriage. There are more than enough laws which have been passed and are in effect to protect everyone from suffering in this way, and through which protective orders and provisions of financial maintenance can be obtained. In addition, in circumstances where the abusive spouse also owns the family home and other property, the abused spouse can also apply for a for the court to declare your legal entitlement of one half (or other percentage) of its market value and order the transfer.

In your situation, you have heavy and copious legal Acts which you can use to protect yourself and your children.

For ease of reference, they are: 1) The Domestic Violence Act; 2) The Maintenance Act; 3) The Children (Guardianship and Custody) Act; 4)The Property Rights of Spouses Act; and 5) The Matrimonial Causes Act.

You have asked what legal steps you can take to protect you and your children while ensuring yours and their continuing financial stability. You mentioned that you have tried to save what little you can in preparation for when to leave. Leaving your home is, in fact, not a requirement or necessity at all, as in circumstances of abusive homes, the court in dealing with an application under the Domestic Violence Act, in more instances than not, excludes the abuser from the home or in some circumstances, if workable, orders him to only occupy a part of the home if the wife and children’s safety and privacy can be secured.

This application is vitally important and you should make your applications to the Family Court for your parish where you all reside, on your behalf and on behalf of your children. You see, the fact that your children have been in your abusive family home throughout the many years you have been subject to your husband’s abuses, makes them prescribed persons (sufferers of the abuses) as well as you.

You should take with you to the Family Court a certified copy of your marriage certificate and of the birth certificates of your children, when you go to ask for assistance with the preparation of your applications under the Domestic Violence Act for orders of protection and occupation and ancillary orders and maintenance orders for you and for the children pursuant to the Maintenance Act, so that they are heard together in the same hearing of the proceedings. This is absolutely necessary in your circumstances.

You need not have an attorney-at-law to act for you to proceed with any application in the Family Court and these processes move much faster than if you apply for an injunction and maintenance as a married woman under the Matrimonial Causes Act. Supreme Court proceedings require legal representation because of the complexity of the documents which must be prepared and filed and the times required for each filing. The hearings are also not as quickly done as in the Family Court.

You must also ensure that you make your application at the same time under the Children (Guardianship and Custody) Act for sole legal custody and care and control of your children on the grounds of his abuses for all the years you referred to (details of which must be specified) and that any access your husband can have to them, must be supervised.

Pursuant to the amendment of the Domestic Violence Act in 2004, the court is empowered when making a protection and/or an occupation order, in the same proceedings, to make orders pursuant to the Maintenance Act for the maintenance of the applicant (you) and of your children, when it is based on your application. If you or the clerk fails to add this, then the court can itself add it and deal with it and make the necessary orders, so neither you or your children are left without financial support.

After these applications, you can then move on to any applications for declarations and divisions of properties under the Property (Rights of Spouses) Act, which as I said covers both real and personal properties owned by your husband and which he holds in his sole name.

Despite the fact that you do not require legal representation for your applications in the Family Court, I would advise you to retain an attorney because from what I glean about your husband, he seems the kind of respondent who would have a lawyer to act for him, so you must try and even the playing field when your applications are heard by having your own lawyer who would vigorously present your cases in relation to each of your applications.

I trust that I have clarified the laws which exist and which you must use to protect yourself and your children. Like you, they also have the legal right to have lives which are free from violence and abuse of all kinds, both physical and mental.

Please act promptly and use the laws which exist for your protection.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.