The ‘former spouse’ and violence

DR GABRIELLE JAMELA HOSEIN

IN THE twilight zone that is the Caribbean, the courts in Barbados have ruled that there should be a time limit on who can be defined as a “former spouse” in applications for protection orders.

Today, the Barbados Court of Appeal is hearing an application for leave to have their decision challenged at the Caribbean Court of Justice.

A woman was in a cohabitational relationship with her partner, living together for 21 months. Partners in cohabitational relationships who live together but are not married are considered “spouses” under the Barbados Domestic Violence (Protection Orders) Act, known as CAP130A.

Partners who were in cohabitational relationships are considered “former spouses.” Since 1993, both are covered under the act and can apply for an order of protection against a violent partner or former partner.

In the statute, there is no time limit set on “former spouse,” meaning an applicant doesn’t lose this status after any period of time, just as you can be recognised as a former prime minister for all of history following your tenure.

After living together, and sharing a child, the couple began to live separately. Then they were “on again, off again” and the violence that characterised the relationship returned. Just three weeks before the incident that prompted the application for a protection order, the couple had been intimate. Beyond being a former spouse, the woman was also covered under the act as a partner in a visiting relationship.

At the magistrates’ court, the woman was asked whether she considered herself a former spouse or any category of person allowed a protection order. She said no.

Whether this was because she was young, nervous, traumatised or didn’t understand what she was being asked, the magistrate proceeded to grant a protection order to her child, but not her.

This decision made no sense. The circumstances were clear and uncontested – the woman was once in a cohabitational relationship and she was now experiencing violence as a result. The law was also clear, and the woman, as a lay person without expertise, should not have been asked to interpret a legal definition. Her lawyer appealed.

It became more ludicrous at the Barbados Court of Appeal, which upheld the decision of the magistrates’ court in May, asserting that the act is ambiguous.

Worse, the court suggested that the law is not “practical,” which it was out of order to do. The transcript between the male judges and her lawyer over this young woman’s right to protection from violence reads like this:

Justice Belle: “When does a person stop being a former spouse?”

Mr Hanuman (the woman’s lawyer): “When they die, sir.”

Belle: “So forever…”

Mr Hanuman: “Precisely.”

Belle: “I would have a right to pay if my former spouse under the Domestic Violence Act, for anything that person does to me.”

Mr Hanuman: “Precisely, sir, that is what the act…”

Belle: “You really think that that is practical, Mr Hanuman?”

Mr Hanuman: “Sir, that is what the law says, practically.”

Belle: "That's is not what it…that is not the intention of the law, Mr Hanuman, but anyway, move on."

Protection of former spouses was precisely the intention of Barbadian lawmakers.

Yet the message from the courts? If your partner and you break up, but you threaten to kill her a month later, she cannot access state protection.

Feminists in Barbados have pointed to victims who have been out of relationships as short as three weeks being denied protection. They have pointed to the intention of the 2016 amendment to the act to extend the classes of people considered victims of domestic violence, not limit them. They have called for public outcry and advocacy to right this misguided, bizarre and backward judicial wrong.

Practically speaking, former spouses can be at risk for months and years after a relationship is over. If there are children involved, threats, intimidation and violence can continue because the parties are in regular contact for years after.

I once provided support for a woman whose former spouse harassed her for decades. She obtained a protection order without the court ever considering how long the relationship had ended.

In magistrates’ courts as well as in domestic violence legislation across the region, the risk to former partners is well recognised. If judgments from magistrates’ courts were written, there would be clear case law. Why would this suddenly be questioned?

And so we find ourselves today with a wary eye on the Barbados Court of Appeal and, later, on the CCJ.

Diary of a mothering worker

Entry 442

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