How do I keep my abusive ex-husband away from me?
The desire to stay happy and free from pain can be any individual's most significant moral test.
Hi Wakili
How can I keep my abusive husband from coming to our home? We are divorced but he keeps popping in claiming that he wants to see the children. Can the court help on this matter?
Dear distressed reader,
The primary motivation for getting married is the pursuit of happiness. It is assumed, at least emotionally, that love could lead to pleasure of such good nature to glue a couple together, not for a day but a lifetime. It is also likely the main reason why couples seek divorce. The desire to stay happy and free from pain can be any individual's most significant moral test.
The Constitution anticipates marriage, separation, and divorce. Article 45 (3) provides that parties to a marriage are entitled to rights, at the time of marriage, during the marriage, and at the dissolution of the marriage.
It is assumed once a decree-absolute has been declared by the Court, in which final directions are given that the tenets of marriage no longer bind a couple, certain rights and freedoms previously enjoyed within the confines of the union come into play, for a spinster and bachelor. Two of the most fundamental are the rights to privacy and physical safety.
The story within the text of your question points to the possibility that you are a survivor of domestic violence and highly predisposed to the continuation of such acts. Your former husband must come to terms with the death of the union, which to some extent gave him a latitude of freedom to interfere with your personal space since marriage binds couples to certain expectations, such as sharing a house, building a home, fidelity, and mutual communication or consultations.
Your former spouse is subjecting you to what is considered domestic violence in Part I, Section 3 of the Protection Against Domestic Violence Act, where the many forms are described. The behaviour of your former spouse can lead to some of the violations described in paragraphs (f) to (o) of Clause (1) of this section.
This includes the following; (f) emotional or psychological abuse; (g) forcible entry into the applicant's residence where the parties do not share the same residence; (h) harassment; (j) intimidation; (k) physical abuse; (m) stalking: and (o) any other conduct against a person, where such conduct harms or may cause imminent harm to the safety, health, or well-being of the person.
Based on this section of the Protection Against Domestic Violence Act, you are entitled to seek a protection order to restrain your former spouse from this kind of conduct, also provided for in Part II. Specifically, Section 8 provides the right for someone in your situation or similar to apply for a protection order.
It states that a person in a domestic relationship with another person may apply to the Court for a protection order in respect of that other person. This section read together with Section 3, sub-section (4) of Part I, it is clear that domestic relationship includes persons who have been in a marriage with the other person which has been dissolved or declared null.
Seeking a protection order from the Court will require that you produce evidence of the allegations mentioned in this text. Your form of proof may be given support or corroborated by the presence of a witness or witnesses to the facts you will raise in Court as grounds upon which a restraining order could be considered and given.
The Court, as provided for in Section 13 of Part II, is obligated to make a Protection Order on two grounds. First, it must satisfy that the respondent (who has been sued) is using, or has used, domestic violence against an applicant, and making such a protection order is necessary to protect the applicant and all who suffer the consequences of the respondent's conduct.
A protection order as provided for in Section (19), sub-section (1) may, among other directions, demand that the respondent (having been accused of such acts of domestic violence) not to (a) physically or sexually abuse or threaten to abuse the protected person; not to damage or threaten to damage, any property of the protected person; not to engage or threaten to engage, in behaviour including intimidation or harassment, which amounts to psychological abuse of the protected person; not to engage or threaten to engage in conduct that would result into harm of the protected person. In Sub-section (2), the Act goes further to caution that the absence of express consent of the protected person shall, in its most entire terms, prohibit the person against whom an order has been sought from watching, loitering near, or accessing the protected person's place of residence, business, employment, educational institution, or any other place that the protected person visits often. Listening to your plea, it is reasonable for you to seek a protection order from the Court to restrain this stranger from tormenting your peace, having terminated the union that previously bound you.
Remember your rights, as articulated in Articles 29 regarding physical safety and 31 on privacy, must not be threatened or reduced by domestic violence. All people, their marital status notwithstanding, must not compromise their inherent dignity enshrined in Article 28 of the Constitution.
Mr Mukoya has over 17 years’ experience in the social justice sector
