CHAPTER
99
SEXUAL OFFENCES AND DOMESTIC VIOLENCE |
ARRANGEMENT OF
SECTIONS |
SECTION |
|
PART I
SEXUAL OFFENCE |
Definitions |
Interpretation in Part I. |
|
Definition of sexual intercourse. |
|
Indictable Sexual
Offences |
|
|
Prostitution and disclosure of AIDS. |
Restriction on conviction under section 7 or 8. |
Sexual intercourse with a person under fourteen
years. |
Sexual intercourse with a person between
fourteen and sixteen years. |
Sexual intercourse with a person suffering from
a mental disorder. |
|
Sexual intercourse with a dependant. |
Sexual assault by spouse. |
|
|
Saving as to liability for rape in cases of
defilement, etc. |
House holder, etc., permitting defilement of
young person on his premises. |
Forcible taking or detaining of person with
intent. |
Unlawful detention with intent to have sexual
intercourse. |
Abduction of unmarried person under sixteen. |
Abduction of unmarried person between sixteen
and eighteen. |
Special provision as to abetment in cases of
abduction. |
Special provisions as to abduction. |
|
General Provisions |
Powers of court where sexual offence committed. |
Mandatory reporting of suspected abuse of
minors. |
Offences under this Part to be indictable
offences. |
PART II
DOMESTIC VIOLENCE |
Definitions |
Interpretation in Part II. |
|
Arrest for breach of injunction. |
Rights concerning matrimonial home where one
spouse has no estate. |
Rights concerning matrimonial home where both
spouses have estate. |
Powers of magistrate's court to make an order
for protection of spouse. |
Arrest for breach of order of magistrate. |
Power of Supreme Court in respect of order of
magistrate. |
PART III
MISCELLANEOUS PROVISIONS |
Amendment of various Acts. |
|
CHAPTER 99 |
SEXUAL OFFENCES
AND DOMESTIC VIOLENCE |
An Act to
amend the law relating to sexual offences and to make provision in respect of
related circumstances involving parties to a marriage. | 9 of 1991
10 of 2000 |
[Assent 29th July,
1991]
[Commencement 2nd August, 1991] |
1. This Act may be cited as the Sexual Offences and
Domestic Violence Act, 1991. | Short title. |
PART I
SEXUAL OFFENCE |
Definitions |
2. In this Part- | Interpretation in Part I. |
"abetment",
"administer", "attempt", "consent",
"imprisonment", "indictment", "intent",
"premises", "prison" "public place" and
"threat" have the meanings respectively assigned to those expressions
under section 4 of the Penal Code; |
"adult"
means a person eighteen years of age or more; |
"minor"
means a person under eighteen years of age; |
"sexual
offence" means any offence under sections 6 to 14 or section 16 of this
Act. |
3. Rape is the act of any person not under fourteen
years of age having sexual intercourse with another person who is not his
spouse- | Definition of rape. |
(a) without the
consent of that other person; |
(b) without
consent which has been extorted by threats or fear of bodily harm; |
(c) with
consent obtained by personating the spouse of that other person; or |
(d) with
consent obtained by false and fraudulent representations as to the nature and
quality of the act. |
4. For the purposes of this Act, "sexual intercourse"
includes- | Definition of sexual intercourse. |
(a) sexual
connection occasioned by any degree of penetration of the vagina of any person
or anus of any person, or by the stimulation of the vulva of any person or anus
of any person, by or with- |
(i) any
part of the body of another person; or |
(ii) any
object used by another person, |
except
where the penetration or stimulation is carried out for proper medical
purposes; and |
(b) sexual
connection occasioned by the introduction of any part of the penis of any
person into the mouth of another person, |
and any
reference in this Act to the act of having sexual intercourse includes a
reference to any stage or continuation of that act. |
5. (1) A person is guilty of abduction of another person
who, with intent to deprive any person entitled to the custody or control of
that other person, of such custody or control, or with intent to cause that
other person to be married to, or to co-habit or have sexual intercourse with,
any person- | Definition of abduction. |
(a) unlawfully
takes that other person from the lawful custody, care or charge of any person;
or |
(b) detains
that other person from returning to the lawful custody, care or charge of any
person. |
(2) The custody,
control, care or charge of a person by a parent, guardian or other person shall
be held to continue, notwithstanding that the first-mentioned person is absent
from the actual custody, control, care or charge of the parent, guardian or
other person if the absence is for a special purpose only, and is not intended
by the parent, guardian or other person to exclude or determine such custody,
control, care or charge for the time being; but a person is not guilty of
abduction by taking or detaining a person unless he knew or had grounds for
believing, that the person so taken or detained was in the custody, control,
care or charge of some other person. |
Indictable Sexual
Offences |
6. (1) Any person who commits rape is guilty of an offence
and liable to imprisonment for life, subject to, on a first conviction for the
offence, a term of imprisonment of seven years and, in the case
of a second or subsequent conviction for the offence, a term of imprisonment of
fourteen years. | Rape. |
(2) Any person who
attempts to commit rape, or assaults any person with intent to commit rape, is
guilty of an offence and liable to imprisonment for fourteen years, subject to,
in the case of a second or subsequent conviction for the offence being a
conviction on information, a term of imprisonment of eight
years. |
7. Any person who- | Procuration. |
(a) procures or
attempts to procure any person under eighteen years of age to have unlawful
sexual intercourse, either in or outside The Bahamas, with any other person; |
(b) procures or
attempts to procure any person to become, either in or outside The Bahamas, a
common prostitute; |
(c) procures or
attempts to procure any person to leave The Bahamas with intent that he may
become an inmate of or frequent a brothel elsewhere; |
(d) procures or
attempts to procure any person to leave his usual place of abode in The Bahamas
with intent that he may, for the purposes of prostitution, become an inmate of
or frequent a brothel either in or outside The Bahamas; |
(e) by threats
or intimidation, procures or attempts to procure any person to have unlawful
sexual intercourse either in or outside The Bahamas; |
(f) by false
pretences or false representations, procures any person to have any unlawful
sexual intercourse either in or outside The Bahamas; or |
(g) applies,
administers or causes to be taken by any person any drug, matter or thing with
intent to stupefy or overpower, so as thereby to enable any other person to
have unlawful sexual intercourse with such first-mentioned person, |
is guilty of
an offence and liable to imprisonment for eight years. |
8. (1) Any person who- | Prostitution and disclosure of AIDS. |
(a) knowingly
lives wholly or in part on the earnings of prostitution; or |
(b) in any
public place persistently solicits or importunes for immoral purposes, |
is guilty of
an offence and liable to imprisonment for five years. |
(2) Any person who
knows that he is infected with a virus causing, or known to cause, acquired
immune deficiency syndrome (commonly known as "AIDS") and who has
sexual intercourse with any other person, with the consent of that other person
but without disclosing the fact of the infection to that other person, is
guilty of an offence and liable to be detained for a term of five years in such
place and under such conditions as may be specified by the court before which
he is convicted; and, while so detained, he shall be deemed to be in legal
custody. |
(3) It shall be a
sufficient defence to any charge under subsection (2), if it is made to appear
to the court before which the charge shall be brought that the person with whom
the person so charged had sexual intercourse knew, or had reasonable cause to
believe, before sexual connection was occasioned, that the person so charged
was so infected. |
9. No person shall be convicted of an offence under
section 7 or 8(1) upon the evidence of one witness unless such evidence be
corroborated in some material particular by evidence implicating the accused
person. | Restriction on conviction under section 7 or 8. |
10. (1) Any person who has unlawful sexual intercourse
with any person under fourteen years of age, whether with or without the
consent of the person with whom he had unlawful sexual intercourse, is guilty
of an offence and liable to imprisonment for life subject to, on a first
conviction for the offence, a term of
imprisonment of seven years and in the case of a second or subsequent
conviction for the offence, a term of imprisonment of fourteen years. | Sexual intercourse with a person under fourteen years. |
(2) Any person who
attempts to have unlawful sexual intercourse with any person under fourteen
years of age, whether with or without the consent of the person with whom he
attempted to have unlawful sexual intercourse, is guilty of an offence and
liable to imprisonment for fourteen years subject to, in the case of a second
or subsequent conviction for the offence, a term of
imprisonment of eight years. |
11. (1) Any person who has unlawful sexual intercourse
with any person being of or above fourteen years of age and under sixteen years
of age, whether with or without the consent of the person with whom he had
unlawful sexual intercourse, is guilty of an offence and liable to imprisonment
for life subject to, on a first conviction for the offence, a
term of imprisonment of seven years and, in the case of a second or subsequent
conviction for the offence, a term of imprisonment of fourteen years. | Sexual intercourse with a person between fourteen and
sixteen years. |
(2) Any person who
attempts to have unlawful sexual intercourse with any person being of or above
fourteen years of age and under sixteen years of age, whether with or without
the consent of the person with whom he attempted to have unlawful sexual
intercourse, is guilty of an offence and liable to imprisonment for fourteen
years subject to, in the case of a second or subsequent conviction for the
offence, a term of imprisonment of eight years. |
(3) It shall be a
sufficient defence to any charge under this section if it is made to appear to
the court or jury before whom the charge shall be brought that the person so
charged, being a person not over the age of eighteen years and not previously
convicted of the same offence, had reasonable cause to believe that the person
with whom he had sexual intercourse was of or above sixteen years of age. |
(4) A prosecution
for an offence under this section shall be commenced within six months of the
commission of the offence and with the consent of the Attorney-General. |
(5)
...... |
12. (1) Any person who has unlawful sexual intercourse
with any person who is suffering from any mental disorder, whether with or
without the consent of the person with whom he had unlawful sexual intercourse,
under circumstances which prove that the accused person knew at the time of the
commission of the offence that the person with whom he had unlawful sexual
intercourse was a person suffering from a mental disorder, is guilty of an
offence and liable to imprisonment for life subject to, on a first conviction
for the offence, a term of imprisonment of seven years and, in
the case of a second or subsequent conviction for the offence, a term of
imprisonment of fourteen years. | Sexual intercourse with a person suffering from a
mental disorder. |
(2) Any person who
attempts to have unlawful sexual intercourse with any person who is suffering
from any mental disorder, whether with or without the consent of the person
with whom he attempted to have unlawful sexual intercourse, under circumstances
which prove that the accused person knew at the time of the commission of the
offence that the person with whom he attempted to have unlawful sexual
intercourse was a person suffering from a mental disorder, is guilty of an
offence and liable to imprisonment for fourteen years subject to, in the case
of a second or subsequent conviction for the offence, a
term of imprisonment of eight years. |
(3) In this
section, "mental disorder" means severe subnormality or subnormality
within the meanings respectively assigned to those expressions under subsection
(1) of section 2 of the Mental Health Act. |
13. (1) Any person who, knowing that another person is
by blood relationship his or her parent, child, brother, sister, grand parent,
grandchild, uncle, niece, aunt or nephew, as the case may be, has unlawful
sexual intercourse with that other person, whether with or without the consent
of that other person, is guilty of the offence of incest and liable to
imprisonment- | Incest. |
(a) if he is an
adult who commits the offence with a minor, for life subject to, on a first
conviction for the offence, a term of imprisonment of seven years, and
in the case of a second or subsequent conviction for the offence, a term of
imprisonment of fourteen years; |
(b) if he is an
adult who commits the offence with another adult; for a term of ten years; and |
(c) if he is a
minor who commits the offence with another minor, for a term of two years. |
(2) Any person
who, knowing that another person is by blood relationship his or her parent,
child, brother, sister, grandparent, grandchild, uncle, niece, aunt, or nephew,
as the case may be, attempts to have unlawful sexual intercourse with that
other person, whether with or without the consent of that other person, is
guilty of an offence and liable to imprisonment- |
(a) if he is an
adult who commits the offence with a minor, for fourteen years subject to, in the case of a second or subsequent
conviction for the offence, a term of imprisonment of eight years; |
(b) if he is an
adult who commits the offence with another adult, for a term of four years; and |
(c) if he is a
minor who commits the offence with another minor, for a term of six months. |
(3)
Notwithstanding the commission by any person of an act which amounts to an
offence under subsection (1) or (2), that person is not guilty of the offence
if- |
(a) he
committed the act under restraint, duress or fear; |
(b) he did not
consent to the commission of the act; or |
(c) at the time
of the commission of the act, he was the spouse of the person with whom the act
was committed. |
(4) In this
section, any expression importing a relationship between two persons shall be
taken to apply notwithstanding that the relationship is not traced through
lawful wedlock; and "brother" includes "half-brother" and
"sister" includes "half-sister". |
(5) No prosecution
shall be commenced for an offence under paragraph (c) of subsection (1) or
paragraph (c) of subsection (2) without the consent of the Attorney-General. |
14. (1) Any adult who has unlawful sexual intercourse
with a dependent child of the adult, whether with or without the consent of the
child, is guilty of an offence and liable to imprisonment for life subject to,
on a first conviction for the offence, a term of
imprisonment of seven years and, in the case of a second or subsequent
conviction for the offence, a term of imprisonment of fourteen years. | Sexual intercourse with a dependant. |
(2) Any adult who
attempts to have unlawful sexual intercourse with a dependent child of the adult,
whether with or without the consent of the child, is guilty of an offence and
liable to imprisonment for fourteen years subject to, in the case of a second
or subsequent conviction for the offence, a term of
imprisonment of eight years. |
(3) In this
section, "dependent child of the adult" means a minor who is not
related by blood to the adult but- |
(a) is the
adopted child, step-child, foster child or ward of the adult; |
(b) has been
treated by the adult as a child of the family of the adult; |
(c) is being
maintained, either wholly or partly, by the adult; |
(d) is in the
actual custody; charge or control of the adult; or |
(e) in relation
to whom the adult holds a position of trust. |
15. (1) Any person who has sexual intercourse with his
spouse without the consent of the spouse- | Sexual assault by spouse. |
(a) where there
is in existence in relation to them- |
(i) a
decree nisi of divorce; |
(ii) a
decree of judicial separation; |
(iii) a
separation agreement; or |
(iv) an
order of a court for the person not to molest or co-habit with his spouse, or
any other order made under Part II; or |
(b) where the
person has notice that a petition for judicial separation, divorce or nullity
of marriage has been presented to a court, |
is guilty of
the offence of sexual assault by spouse and liable to imprisonment for a term
of fifteen years. |
(2) No prosecution
shall be commenced for an offence under this section without the consent of the
Attorney-General. |
16. (1) Any person who commits an act of unnatural
connection with any animal is guilty of a sexual offence and liable to
imprisonment for twenty years; and an offence under this subsection is complete
upon penetration. | Unnatural crime. |
(2) Any adult male
who- |
(a) has sexual
intercourse with another male who is a minor; or |
(b) has sexual
intercourse, in a public place, with another male, |
whether with
or without the consent of that other male, is guilty of a sexual offence and
liable to imprisonment for twenty years. |
(3) Any female
adult who- |
(a) has sexual
intercourse with another female who is a minor, or |
(b) has sexual
intercourse, in a public place, with another female, |
whether with
or without the consent of that other female, is guilty of a sexual offence and
liable to imprisonment for twenty years. |
(4)
Notwithstanding the commission by any person of an act which amounts to an
offence under this section, that person is not guilty of the offence if he
committed the act under restraint, duress or fear. |
(5) No prosecution
shall be commenced for an offence under this section without the consent of the
Attorney-General. |
17. (1) Any person who- | Indecent assault. |
(a) indecently
assaults any other person; |
(b) does
anything to any other person with the consent of that other person which, but
for such consent, would be an indecent assault, such consent being obtained by
false and fraudulent representation as to the nature and quality of the act, |
is guilty of
an offence and liable to imprisonment for eight years. |
(2) It is no
defence to a charge of an indecent assault committed on a person under fourteen
years of age, to prove that that person consented to the act of indecency. |
18. Nothing in any of sections 10 to 14, 16(3) or 17
shall exempt a person from liability to punishment for rape or for an attempt
to commit rape. | Saving as to liability for rape in cases of
defilement, etc. |
19. Any person who, being the owner or occupier of any premises,
or having or acting or assisting in the management or control thereof, induces
or knowingly suffers any person under sixteen years of age to resort to, or be
in or upon the premises for the purpose of co-habiting or having unlawful
sexual intercourse with any person, whether with any particular person or
generally, is guilty of an offence and liable to imprisonment for ten years: | House holder, etc., permitting defilement of young
person on his premises. |
Provided that it
shall be a sufficient defence to any charge under this section if it is made to
appear to the court or jury that the accused person had reasonable cause to
believe that the person so induced or suffered was of or above sixteen years of
age. |
20. Any person who, by force, takes away or detains any
other person of any age against his will, with intent to marry or co-habit or
have unlawful sexual intercourse with him, or to cause him to be married to or
to co-habit or have unlawful sexual intercourse with another person, is guilty
of an offence and liable to imprisonment for fourteen years. | Forcible taking or detaining of person with intent. |
21. (1) Any person who detains any other person against
his will- | Unlawful detention with intent to have sexual
intercourse. |
(a) in or upon
premises with intent that that other person may co-habit or have unlawful
sexual intercourse with another person, whether any particular person or
generally; or |
|
is guilty of
an offence and liable to imprisonment for two years. |
(2) Where any
person is in or upon premises for the purpose of co-habiting or having any
unlawful sexual intercourse, or is in any brothel, another person shall be
deemed to detain him in or upon the premises or in the brothel, if with intent
to compel or induce him to remain therein that other person withholds from him
any wearing apparel or other property belonging to him, or, where wearing
apparel has been lent or otherwise supplied to him by or by the direction of
that other person, that other person threatens him with legal proceedings if he
takes away with him the wearing apparel so lent or supplied. |
(3) No legal
proceedings whether civil or criminal shall be taken against a person who was
in or upon any premises or brothel as mentioned in subsection (2) for taking
away or being found in possession of any such wearing apparel as was necessary
to enable him to leave the premises or brothel. |
22. Any person who is guilty of an abduction of any
unmarried person under sixteen years of age is guilty of an offence and liable
to imprisonment for two years. | Abduction of unmarried person under sixteen. |
23. Any person who is guilty of an abduction of any
unmarried person being of or above sixteen years of age and under eighteen
years of age is guilty of an offence and liable to imprisonment for two years: | Abduction of unmarried person between sixteen and
eighteen. |
Provided that it
shall be a sufficient defence to any charge under this section if it shall be
made to appear to the court or jury that the person so charged had reasonable
cause to believe that such unmarried person was of or above eighteen years of
age. |
24. Any person who, knowing that any of the offences
mentioned in sections 19 to 23 has been committed in the case of any person, or
otherwise abets the unlawful detention of the person, or otherwise abets the
execution of the intent with which that offence was committed, shall be deemed
guilty of that offence. | Special provision as to abetment in cases of
abduction. |
25. For the purposes of the sections of this Part
relating to abduction- | Special provisions as to abduction. |
(a) it is not
necessary that the taking or detaining should be without the consent of the
person taken or detained, and it suffices if the person is persuaded, aided or
encouraged to depart or not to return; |
(b) it is not
necessary that there should be an intent permanently to deprive any person of
the custody or control of the person taken or detained; |
(c) a taking or
detention is unlawful unless some person entitled to give consent to the taking
or detention of the person taken or detained, for the purposes for which he is
taken or detained, gives consent to the taking or detention for those purposes; |
(d) a person
having the temporary custody, care or charge of another person for a special
purpose, as his attendant, employer or schoolmaster or in any other capacity,
can be guilty of abduction of that person by acts which he is not authorised to
do for such special purpose, and he cannot give consent to any act by another
person which would be inconsistent with such special purpose; and |
(e) notwithstanding
the application of the general provisions of Book I. of the Penal Code with
respect to mistake of law, a person is not guilty of abduction of another
person by anything which he does in the belief that he is entitled by law as a
parent or guardian, or by virtue of any other legal right, to take or detain
the other person for the purposes for which he takes or detains him; but this
rule shall not be construed to exempt a person from liability to punishment on
the plea that he did not know or believe or had not the means of knowing, that
the other person was under sixteen or eighteen years of age, as the case may
be, not to exempt a person from liability to punishment for abduction if he
took or detained the other person for any immoral purpose. |
26. (1) Any person who- | Sexual harassment. |
(a) being a
prospective employer importunes or solicits sexual favours from another person- |
(i) in
the terms or conditions on which he offers, to that person or any other person,
employment or admission into any institution; or |
(ii) under
a threat of rejection (whether implied or otherwise) of any application made by
that person or any other person for employment or for admission into any
institution, or of causing such rejection; |
(b) being in a
position of authority over, or being a co-worker of, another person in any
place of employment or any institution, importunes or solicits sexual favours
from that other person under any holding out, promise or threat of the grant or
imposition of any favour, benefit, advantage or disadvantage, as the case may
be, at the place of employment or institution; or |
(c) importunes
or solicits from a person in a position of authority in any place of employment
or any institution, any favour, benefit or advantage, or the forbearance from
the exercise of any right, power or duty relating to that authority under any
holding out or promise of sexual favours, |
is guilty of
the offence of sexual harassment. |
(2) Any person who
is guilty of the offence of sexual harassment is liable to a fine of five
thousand dollars or to imprisonment for two years or to both such fine and
imprisonment. |
(3) In this
section, "prospective employer" means any person who- |
(a) is in a
position of authority in any place of employment or any institution; or |
(b) is
authorised to act on behalf of a person mentioned in paragraph (a) for the
purpose of employing personnel for a place of employment or admitting persons
into an institution. |
(4) No prosecution
shall be commenced for an offence under this section without the consent of the
Attorney-General. |
General
Provisions |
27. (1) Where, on the trial of any sexual offence
against a person under sixteen years of age, it is proved to the satisfaction
of the court that the offence has been perpetrated, caused, encouraged or
favoured by his father, mother or guardian, or by any other person having
custody, care, charge or control of him, it shall be in the power of the court
to divest such father, mother, guardian, or other person having such custody,
care, charge or control of all authority over him, and to appoint any person or
persons willing to take charge of him to be his guardian until he has attained
eighteen years of age, or any age below this as the court may direct, and the
court shall have the power from time to time to rescind or vary the order by
the appointment of any other person or persons as guardian or guardians, or in
any other respect. | Powers of court where sexual offence committed. |
(2) Where a person
is convicted of a sexual offence, the court before which he is convicted may in
lieu of, or in addition to, any penalty which may be imposed, make an Order (in
this section referred to as a "psychiatric assistance Order")
requiring the person so convicted to attend a psychiatrist, for psychiatric
assistance during such period specified in the Order as the court may
determine. |
(3) Any person who
fails to comply with any of the provisions of a psychiatric assistance Order is
guilty of an offence and liable on summary conviction to a fine of five
thousand dollars or to imprisonment for six months or to both such fine and
imprisonment. |
28. (1) Any person who- | Mandatory reporting of suspected abuse of minors. |
(a) is the
parent or guardian of a minor; |
(b) has the
actual custody, charge or control of a minor; |
(c) has the
temporary custody, care, charge or control of a minor for a special purpose, as
his attendant, employer or teacher, or in any other capacity; or |
(d) is a
medical practitioner, or a person registered under the Nurses and Midwives Act as a nurse or
midwife, and has performed a medical examination in respect of a minor, |
and who has
reasonable grounds for believing that a sexual offence has been committed in
respect of that minor, shall report the grounds for his belief to a police
officer as soon as reasonably practicable. |
(2) Any person who
without reasonable excuse fails to comply with the requirements of subsection
(1) is guilty of an offence and liable on summary conviction to a fine of five
thousand dollars or to imprisonment for a term of two years or to both such
fine and imprisonment. |
(3) No report made
to a police officer under the provisions of subsection (1) shall, if such
report was made in good faith for the purpose of complying with those
provisions, subject the person who made the report to any action, liability,
claim or demand whatsoever. |
29. Unless otherwise provided under this Part, an
offence under the provisions of this Part is punishable on indictment and the
provisions of Book I. of the Penal Code mutatis mutandis apply in
respect of any such offence as they apply in respect of any offence punishable
under Book III of the Code. | Offences under this Part to be indictable offences. |
PART II
DOMESTIC VIOLENCE |
Definitions |
30. Interpretation in Part II. | Interpretation in Part II |
In this Part- |
"apartment"
means a separate and self-contained set of premises constructed for use as a
place of residence and forming part of a building from some other part of which
it is divided; |
"child of the
family" has the same meaning as in the Matrimonial Causes (Summary
Jurisdiction) Act; |
"dwelling"
means a building used or intended to be used mainly as a separate dwelling or
place of residence and includes an apartment; |
"matrimonial
home" means any dwelling being used exclusively or principally as a home
by one or both of the parties to a marriage, in any case where- |
(a) either or
both of the parties- |
|
(ii) owns
a specified share of any estate or interest in the land on which the dwelling
is situated and by reason of reciprocal agreements with the owners of the other
shares is entitled to the exclusive occupation of the dwelling, or |
(iii) holds
shares in a company which owns any estate or interest in the land on which the
dwelling is situated and, by reason of holding those shares, is entitled to the
exclusive occupation of the dwelling; and |
(b) either or
both of the parties owned the dwelling or the specified share in land or held
the shares, as the case may be, at the date of any application under the
provisions of this Part; |
"mortgage"
includes a charge and mortgagor and mortgagee shall be construed accordingly; |
"mortgagor"
and "mortgagee" includes any person deriving title under the original
mortgagor or mortgagee. |
Injunctions, etc. |
31. (1) On an application by a party to a marriage the
Supreme Court may grant an injunction containing one or more of the following
provisions- | Matrimonial injunctions. |
(a) a provision
restraining the other party to the marriage from molesting the applicant; |
(b) a provision
restraining the other party from molesting a child living with the applicant; |
(c) a provision
excluding the other party from the matrimonial home, or a part of the
matrimonial home, or from a specified area in which the matrimonial home is
included, for any period not exceeding three months; |
(d) a provision
requiring the other party to permit the applicant to enter and remain in the
matrimonial home or a part of the matrimonial home, |
whether or
not any other relief is sought in the proceedings. |
(2) An application
under this section shall be made in conformity with Rules of the Supreme Court. |
32. (1) Where, on an application by a party to a
marriage, the Supreme Court grants an injunction containing a provision (in
whatever terms)- | Arrest for breach of injunction. |
(a) restraining
the other party to the marriage from using violence against the applicant; |
(b) restraining
the other party from using violence against a child living with the applicant;
or |
(c) excluding
the other party from the matrimonial home, or from a part of the matrimonial
home, or from a specified area in which the matrimonial home is included, |
the Court
may, if satisfied that the other party has caused actual bodily harm to the
applicant or, as the case may be, to the child concerned and if of the opinion
that the other party is likely to do so again, attach a power of arrest to the
injunction. |
(2) If, by virtue
of subsection (1), a power of arrest is attached to an injunction a police
officer may arrest without warrant a person whom he has reasonable cause for
suspecting of being in breach of such a provision of that injunction as falls
within paragraphs (a) to (c) of subsection (1) by reason of the use of violence
by that person or, as the case may be, of the entry of that person into any
premises or area. |
(3) Where a power
of arrest is attached to an injunction and a person to whom the injunction is
addressed is arrested under subsection (2)- |
(a) he shall be
brought before the Supreme Court within a period of twenty-four hours beginning
at the time of his arrest; and |
(b) upon proof
of the breach of any such provision of the injunction as falls within
paragraphs (a) to (c) of subsection (1), he may be ordered by the Supreme Court
to pay a sum not exceeding two thousand dollars or to serve a term of
imprisonment not exceeding fourteen days and, in the case of a continuing
breach, he may be ordered by the Court to pay a further sum not exceeding one
hundred dollars for each day that such breach continues after the date of its
proof, |
and in
reckoning for the purposes of this subsection any period of twenty-four hours,
no account shall be taken of any Saturday, Sunday or public holiday. |
(4) Where by
virtue of a power of arrest attached to an injunction, a police officer arrests
any person under subsection (2), the police officer shall forthwith seek the
directions of the Registrar of the Supreme Court as to the time and place at
which that person is to be brought before the Supreme Court. |
33. (1) Where one party to a marriage is entitled to
occupy the matrimonial home by virtue of a beneficial estate or interest or
contact or by virtue of any written law giving that party the right to remain
in occupation, and the other party to the marriage is not so entitled, then,
subject to the provisions of this Part, the party not so entitled shall have
the following rights (in this Part referred to as "rights of
occupation")- | Rights concerning matrimonial home where one spouse
has no estate. |
(a) if in
occupation, a right not to be evicted or excluded from the matrimonial home or
any part thereof by the other party except with the leave of the court given by
an order under this section; and |
(b) if not in
occupation, a right with the leave of the court so given to enter into and
occupy the matrimonial home. |
(2) So long as one
party to a marriage has rights of occupation, either party to the marriage may
apply to the Supreme Court for an order- |
(a) declaring,
enforcing, restricting or terminating those rights; |
(b) prohibiting,
suspending or restricting the exercise by either party of the right to occupy
the matrimonial home; or |
(c) requiring
either party to permit the exercise by the other party of that right. |
(3) On an
application for an order under this section, the court may make such order as
it thinks just and reasonable having regard to the conduct of the parties to
the marriage in relation to each other and otherwise, to their respective needs
and financial resources, to the needs of any children and to all the
circumstances of the case, and, without prejudice to the generality of the
foregoing provision- |
(a) may except
part of the matrimonial home from a party's rights of occupation (and, in
particular, a part used wholly or mainly for or in connection with the trade,
business or profession of the other party), |
(b) may order a
party occupying the matrimonial home or any part thereof by virtue of this
section to make periodical payments to the other in respect of the occupation;
or |
(c) may impose
on either party obligations as to the repair and maintenance of the matrimonial
home or the discharge of any liabilities in respect of the matrimonial home. |
(4) Orders under
this section may, in so far as they have a continuing effect, be limited so as
to have effect for a period specified in the order or until further order. |
(5) Where a party
is entitled under this section to occupy a matrimonial home or any part thereof
and makes any payment in or towards satisfaction of any liability of the other
party in respect of mortgage payments affecting the matrimonial home, the
person to whom the payment is made may treat it as having been made by that
other party, but the fact that that person has treated any such payment as
having been so made shall not affect any claim of the first-mentioned party
against the other to an interest in the matrimonial home by virtue of the
payment. |
(6) The rights of
occupation of a party to a marriage shall continue only so long as the marriage
subsists and the other party is entitled as mentioned in subsection (1) to
occupy the dwelling house. |
34. (1) Where each of two parties to a marriage is entitled,
by virtue of a legal estate vested in them jointly, to occupy a dwelling in
which they have or at any time have had a matrimonial home, either of them may
apply to the Supreme Court, with respect to the exercise during the subsistence
of the marriage of the right to occupy the dwelling, for an order prohibiting,
suspending or restricting its exercise by the other or requiring the other to
permit its exercise by the applicant. | Rights concerning matrimonial home where both spouses
have estate. |
(2) In relation to
orders under this section, subsections (3) and (4) of section 33 shall apply as
they apply in relation to orders under that section. |
(3) Where each of
two parties to a marriage is entitled to occupy a dwelling by virtue of a
contract, or by virtue of any written law giving them the right to remain in
occupation, this section shall apply as it applies where they are entitled by
virtue of a legal estate vested in them jointly. |
(4) In determining
for the purposes of this section whether two parties to a marriage are entitled
to occupy a dwelling house, there shall be disregarded any right to possession
of the dwelling conferred on a mortgagee of the dwelling house under or by
virtue of this mortgage, whether the mortgagee is in possession or not. |
35. (1) Either party to a marriage may apply to a court
presided over by a magistrate for an order under this section whether or not
any other relief is sought in the proceedings. | Powers of magistrate's court to make an order for
protection of spouse. |
(2) Where on an
application by a party to a marriage for an order under this section the
magistrate's court is satisfied that the other party has used, or threatened to
use, violence against the person of the applicant or a child of the family and
that it is necessary for the protection of the applicant or a child of the
family that an order should be made under this subsection, the court may make
one or both of the following orders- |
(a) an order
that the other party shall not use, or threaten to use, violence against the
person of the applicant; |
(b) an order
that the other party shall not use, or threaten to use, violence against the
person of a child of the family. |
(3) Where on an
application by a party to a marriage for an order under this section the court
is satisfied- |
(a) that the
other party has used violence against the person of the applicant or a child of
the family; |
(b) that the
other party has threatened to use violence against the person of the applicant
or a child of the family and has used violence against some other person; or |
(c) that the
other party has in contravention of an order made under subsection (2)
threatened to use violence against the person of the applicant or a child of
the family, |
and that the
applicant or a child of the family is in danger of being physically injured by
the other party (or would be in such danger if the applicant or child were to
enter the matrimonial home) the court may make one or both of the following
orders- |
(i) an order
requiring the other party to leave the matrimonial home; |
(ii) an order
prohibiting the other party from entering the matrimonial home. |
(4) Where the
court makes an order under subsection (3), the court may, if it thinks fit,
make a further order requiring the other party to permit the applicant to enter
and remain in the matrimonial home. |
(5) An order under
this section may be made subject to such exceptions or conditions as may be
specified in the order and may be made for such term as may be so specified. |
(6) The court in
making an order under paragraph (a) or (b) of subsection (2) may include
provision that the other party shall not incite or assist any other person to
use or threaten to use, violence against the person of the applicant or, as the
case may be, the child of the family. |
(7) Except so far
as the exercise by the other party of a right to occupy the matrimonial home is
suspended or restricted by virtue of an order made under subsection (3), an
order made under this section shall not affect any estate or interest in the
matrimonial home of the other party or any other person. |
(8) A court shall,
on an application made by either party to the marriage in question, have power
by order to vary or revoke any order made under the foregoing provisions of
this section. |
36. (1) Where on an application by a party to a
marriage a court makes an order under section 35 which provides that the other
party- | Arrest for breach of order of magistrate. |
(a) shall not
use violence against the person of the applicant; |
(b) shall not
use violence against a child of the family; or |
(c) shall not
enter the matrimonial home, |
the court
may, if it is satisfied that the other party has physically injured the
applicant or a child of the family and considers that he is likely to do so
again, attach a power of arrest to the order. |
(2) Where by
virtue of subsection (1) a power of arrest is attached to an order, a police
officer may arrest without warrant a person whom he has reasonable cause for
suspecting of being in breach of any such provision of the order as is mentioned
in paragraph (a), (b) or (c) of subsection (1) by reason of the use of violence
by that person or, as the case may be, his entry into the matrimonial home. |
(3) Where a power
of arrest is attached to an order under subsection (1) and a person is arrested
under subsection (2)- |
(a) he shall be
brought before a magistrate within a period of twenty-four hours beginning at
the time of his arrest; and |
(b) upon proof
of the breach of any such provision of the order as is mentioned in paragraph
(a), (b) or (c) of subsection (1), he may be ordered by the magistrate to pay a
sum not exceeding one thousand dollars or to serve a term of imprisonment not
exceeding seven days and, in the case of a continuing breach, he may be ordered
by the magistrate to pay a further sum not exceeding fifty dollars for each day
that such breach continues after the date of its proof; and any sum so ordered
to be paid shall be recoverable summarily as a civil debt, |
and in
reckoning for the purposes of this subsection any period of twenty-four hours,
no account shall be taken of any Saturday, Sunday or public holiday. |
(4) Where a court
has made an order under section 34 but has not attached to the order a power of
arrest under subsection (1), then, if at any time the applicant for that order
considers that the other party to the marriage in question has disobeyed the
order, he may apply for the issue of a warrant for the arrest of that other
party to a magistrate but the magistrate shall not issue a warrant on such an
application unless- |
(a) the
application is substantiated on oath; and |
(b) the
magistrate has reasonable grounds for believing that the other party to the
marriage has disobeyed that order. |
(5) The magistrate
before whom any person is brought by virtue of a warrant issued under
subsection (4) may remand him. |
37. Where after the making by a court of an order under
subsection (3) of section 35 in relation to a matrimonial home, one of the
parties to the marriage in question applies for an order to be made in relation
to that matrimonial home under subsection (2) of section 33 or under section
34, the Supreme Court by which that application is heard may, if it thinks fit,
direct that the order made under subsection (3) of section 35 and any order
made under subsection (4) of section 35 in relation to that matrimonial home,
shall cease to have effect on such date as may be specified in the direction. | Power of Supreme Court in respect of order of
magistrate. |
PART III
MISCELLANEOUS PROVISIONS |
38. The Acts specified in the first column of the
Schedule are amended in the manner and to the extent set out in the second
column of that Schedule. | Amendment of various Acts. |
39. (1) Nothing in any of the provisions of this Act
shall be construed as having the effect of authorising the imposition in
respect of any criminal offence of a penalty severer in degree than the maximum
penalty that might have been imposed for that offence at the time when it was
committed. | Saving. |
(2) The provisions
of this Act do not in any way derogate from or limit the provisions of section
90 of the
Penal Code. |