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Economic abuse

It frequently gets alleged in an application for a protection order that there was “economic abuse”.  This could for example be where one party stops paying the rent of the flat occupied by both parties.  Can a protection order be granted on this basis alone?

This precise question came up in one of my cases.  I represented a man who had been living with his wife.  There had been arguments and she basically threw him out of the matrimonial home.  He could no longer afford to pay the rent as he now had rent to pay elsewhere.  The wife applied for a protection order against him on the basis of “economic abuse” even though her life wasn’t in danger.  Can the courts grant such a protection order?

The fact of the matter is that the protection order court isn’t the correct forum to ask for your spouse to continue paying rent.  This is in fact a maintenance matter which must be dealt with in terms of the Maintenance Act and at the Maintenance Court.

In order to determine maintenance there has to be a thorough investigation of both parties.  The protection order court does not conduct such an investigation.  In the present case we further submitted that my client’s wife had weakened her own financial position by evicting my client from the matrimonial home.  My client’s wife was in fact in a stronger financial position than my client.

Section 7(b) of the Domestic Violence Act states that where the court makes an order in terms of the Act in respect of a matter, that should in the interests of justice, be dealt with further in terms of any other relevant law, including the Maintenance Act, the court must order that such a provision shall be in force for such a limited period, as the court determines in order to afford the party concerned the opportunity to seek appropriate relief in terms of such law.

The problem with the wife’s application for a protection order was that it dealt with issues which should be dealt with by the Maintenance Act.  The application merely presupposed that failure to contribute to rent is an unreasonable deprivation of economic or financial resources.  No opportunity was given to my client to place contradictory facts before the court.

The other problem with the application was that section 7 directs that an order should be of limited duration to afford the applicant an opportunity to exercise her rights in terms of the alternate legislation.  In her application the applicant asked for a contribution to the rent to be paid in perpetuity.  There is no limit on how long my client would have had to pay rent.  This is clearly against the spirit of the Act.

In the end, on the return date of the protection order, my client was successful in having the interim order set aside.  The court correctly decided that my client’s wife had abused the process provided for in terms of the Domestic Violence Act by approaching the protection order courts for relief to which she was not entitled.  She had attempted to subvert the process available to her in terms of the Maintenance Court by applying to the protection order court for emergency monetary relief.

Too many people attempt to abuse the protection order courts nowadays.  One should only apply to this court if your life is in danger.  Financial issues should usually be determined by the maintenance court.

This article was written by Cape Town divorce lawyer, Peter M Baker

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