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Monday, 21 April 2014

Protection Orders

Q: I read some of your posts in your blog about legal rights of Trinidad and Tobago. I noticed there aren't any about restraining orders. I noticed this because I was searching for answers about how to get one...and why do people get them anyway. It would be very helpful for you to post very soon about restraining orders in your online blog.

A: Your wish is my command.

According to s.4(2)of the Domestic Violence Act 1999, as amended:
Domestic violence includes physical, sexual, emotional or psychological or financial abuse committed by a person against a spouse, child, any other person who is a member of the household or dependant;

As long as a qualified person has been a victim of, or can potentially become a victim of domestic violence, an application for a Protection Order may be made by—
(a) the spouse of the respondent;
(b) a member of the household of the spouse or respondent, either on his own behalf or on behalf of any other member of the household;
(c) a child—
(i) by consanguinity or affinity of either the spouse or respondent;
(ii) of whom either the spouse or respondent is a guardian; or
(iii) who is or has been a member of the household of the spouse or the respondent;
(d) a dependant;
(e) a parent or sibling by consanguinity or affinity of either the spouse or respondent not being a member of the household;
(f) a person who has a child in common with the respondent; and
(g) a person who is or has been in a visiting relationship with a person of the opposite sex for a period exceeding twelve months.

If you do not fall within one of the aforementioned categories, you cannot file for a protection order, which, to me, is absolutely ridiculous.

The application for a protection order can be made at the Magistrate’s Court in your area or at the Family Court, in conjunction with another matter, such as a custody, maintenance, divorce, etc. 

Tuesday, 15 April 2014

Sentencing for Statutory Rape in Trinidad and Tobago

Q: My brother is 18 and the girl is 14, but said she was 17 .He was charged with 2 counts of sexual assault with her consent what could be the imprisonment

A: All the sections referred to in this post are found under the Sexual Offences Act 1986, as amended:
With a good Lawyer, he should first be looking at having the charges ‘reduced’ to serious indecency under section 16(1) and he may then receive a lesser sentence. However, for grievous sexual assault, the least sentence I have seen was 3 ½ years, but it’s for the judge to decide. The Act does not stipulate any specific range.

However, the following information may give an idea of what sentencing is like in this area.
6(1) Where a male person has sexual intercourse with a female person who is not his wife and who is under the age of fourteen years, he is guilty of an offence, whether or not the female person consented to the intercourse and whether or not at the time of the intercourse he believed her to be fourteen years of age or more, and is liable on conviction to imprisonment for life.

7(1) Where a male person has sexual intercourse with a female person who is not his wife with her consent and who has attained the age of fourteen years but has not yet attained the age of sixteen years he is guilty of an offence, and is liable on conviction to imprisonment for twelve years for a first offence and to imprisonment for fifteen years for a subsequent offence.

8(1) Where a female adult has sexual intercourse with a male person who is not her husband and who is under the age of sixteen years, she is guilty of an offence, whether or not the male person consented to the intercourse, and is liable on conviction to imprisonment for five years.

The defences to the offences in 7(1) and 8(1) are:
Ø  Honest belief that the person is 16 or more
Ø  The age difference is not greater than 3 years and the Court is of the opinion that the evidence discloses that the defendant is not wholly or chiefly to blame

Tuesday, 8 April 2014

Implied agreement to divorce

Q: I want a divorce, but my husband says that he will not sign any divorce papers; what can I do?

A: Many people believe that a divorce requires the express agreement of both parties, but this is not true. The person filing for the divorce (the petitioner) does NOT need the express agreement of the person who has the opportunity to respond (the respondent) to the divorce petition/application. 

When the petitioner makes the application, the respondent must be served, and if the person's home address is unknown, or s/he lives outside of Trinidad & Tobago, an additional application for substituted service is required. Substituted service can involve service to a person's work address, a close family member, a newspaper advertisement, e-mail, or even Facebook (as was the case in Canada). A tracking number is all the proof required to prove that constructive notice was given via substituted service. 

When the respondent is served with the document outlining the grounds for divorce (the particulars), s/he then has the opportunity to deny the allegations (contest the divorce), agree with the allegations (uncontested divorce) or do nothing (implied uncontested divorce). In the latter, when the petitioner shows up to the hearing, and the respondent, having been probably notified, refused to acknowledge the matter, the hearing will continue, and the Judge will still proceed to grant the divorce nisi decree. 

Many simple divorces (no children or property to separate) are dealt with via ex parte decrees. 

If the marriage isn't working, don't think that you have to stay because the other party is using that to hold you hostage.