Prevention of Domestic Violence Act
- Commenced on 29 December 2006
- [This is the version of this document at 31 December 2014.]
- [Note: This version of the Act was revised and consolidated in the Fifth Revised Edition of the Laws of Malawi (L.R.O. 1/2018), by the Solicitor General and Secretary for Justice under the authority of the Revision of the Laws Act.]
Part I – Preliminary
1. Short titleThis Act may be cited as the Prevention of Domestic Violence Act.
2. InterpretationIn this Act, unless the context otherwise requires—"applicant" means a person who applies, or on whose behalf an application is made, for an order pursuant to this Act;"child" means a person under the age of eighteen years who ordinarily or periodically resides with the applicant, whether or not the child is a child of the applicant and the respondent or either of them, and includes an adopted child, a stepchild, or a child who is treated as a child of the family but does not include a person who is, or has been, married;"court" means a court which, in accordance with section 45, has competent jurisdiction;"dependant" means a person over the age of eighteen years, living within the household, who by reason of age, physical or mental disability or infirmity is reliant on either the applicant or respondent for his or her welfare;"domestic relationship", in relation to domestic violence, means the relationship between persons who are family members and share a household residence or are dependent on each other socially or financially, and includes the relationship where—(a)the applicant and the respondent are husband and wife;(b)a person has a child in common with the respondent and that person is being subjected or is likely to be subjected to domestic violence by the respondent;(c)one is a parent and the other is his or her child or dependant; and(d)the applicant and the respondent are or have been in a visiting relationship for a period exceeding twelve months;"domestic violence" means any criminal offence arising out of physical, sexual, emotional or psychological, social, economic or financial abuse committed by a person against another person within a domestic relationship;"economic abuse" means the denying of a person the liberty to undertake any lawful income generating activity or access economic resources, and includes refusal to provide basic household necessities, withholding that person’s income or salary and denying that person the opportunity to seek employment;"emergency monetary relief", in relation to an interim protection order, means relief provided to the applicant to compensate for loss suffered as a result of the domestic violence, and includes medical and dental expenses, accommodation and transport expenses, household necessities and loss of earnings;"emotional or psychological abuse" means a pattern of behaviour of any kind, the purpose of which is to undermine the emotional or mental well being of a person, and includes—(a)persistent intimidation by the use of abusive or threatening language;(b)persistent following of a person from place to place;(c)depriving a person of the use of his or her property;(d)the watching or besetting of the place where a person resides, works, carries on business or happens to be;(e)interfering with or damaging the property of a person;(f)the forced confinement of a person;(g)persistent telephoning of a person at his or her place of residence or work; and(h)making unwelcome and repeated or intimidatory contact with a child, dependant or elderly relative of a person;"enforcement officer" means any officer designated as such by the Minister under section 31;"financial abuse" means a pattern of behaviour of a kind, the purpose of which is to exercise coercive control over, or exploit or limit a person’s access to financial resources so as to ensure financial dependence;"household residence" means the dwelling-house that is or was last used habitually by persons within a domestic relationship as the only principal family residence, together with any land, buildings or improvements appurtenant thereto, and wholly or mainly used for the purposes of the household;"interim order" means an interim occupation order, an interim protection order, or an interim tenancy order;"occupation order" means an order made under section 11, and includes an interim occupation order;"order" means an occupation order, a protection order, or a tenancy order, but does not include an interim order;"parent" means a person who is a parent or grandparent in relation to a child, dependant, spouse or respondent, as the case may be, by blood, marriage or adoption;"physical abuse" means any act or omission which causes or is intended to cause physical injury or reasonable apprehension of physical injury;"prescribed person", in relation to a respondent, means a husband or wife, parent, child or dependant of the respondent;"protection order" means an order made under section 5 and, includes an interim protection order;"service provider" means any person or body of persons approved by the Minister by order published in the Gazette to provide assistance to victims of domestic violence, and includes the police, community policing forums, faith-based organizations, Government institutions, non-governmental, voluntary or charitable organizations;"sexual abuse" includes sexual contact of any kind that is made by force or threat and the commission of, or an attempt to commit, any of the offences under Chapter XV of the Penal Code;[Cap. 7:01]"social abuse" includes denying a person the freedom to associate freely with others with the aim of possessing that person so as to let that person become completely dependent on the abuser;"tenancy order" means an order made under section 15, and includes an interim tenancy order;"tenant", in relation to a dwelling-house, includes any person—(a)whose tenancy has expired or has been determined; and(b)who is for the time being deemed under or by virtue of any written law to continue to be the tenant of the dwelling-house, and the term "tenancy" has a corresponding meaning.
3. Purpose of ActThe purpose of this Act is to ensure the commitment of the State to eliminate gender-based violence occurring within a domestic relationship, and to provide for effective legal remedies and other social services to persons affected by domestic violence.
4. Persons who may apply for orders
Part II – Protection orders
5. Application for a protection orderAn application for a protection order shall be in accordance with the form prescribed in Form 1 of the Schedule, and may pray for an order—
6. Grant of a protection order on an ex parte application
7. Grant of a protection order
8. Court may make a direction for alternative dispute resolution
9. Existence of other proceedingsA court shall not decline to make a protection order under section 6 or 7 on the grounds only of the existence of other proceedings, including proceedings relating to custody of, or access to, a child between or relating to the parties, whether or not those proceedings relate to any other person.
10. Variation or discharge of a protection order
Part III – Occupation orders
11. Application for an occupation order
12. Grant of an occupation order on ex parte application
13. Effect of an occupation orderWhere an occupation order is made the prescribed person to whom it relates shall be entitled, to the exclusion of the respondent, personally to occupy the household residence to which that order relates.
14. Variation or discharge of occupation orderThe court may, if it thinks fit on an application of either party in accordance with the form prescribed in Form 7 of the Schedule, make an order, in accordance with the form prescribed in Form 8 of the Schedule—
Part IV – Tenancy orders
15. Application for a tenancy order
16. Grant of a tenancy order on an ex parte application
17. Effect of a tenancy order
18. Power to discharge tenancy order and revesting tenancy
Part V – Provisions relating to occupation orders and tenancy orders
19. Procedure relating to occupation orders and tenancy orders
20. Ancillary orders respecting furniture, etc.
Part VI – Interim orders
21. Interim order
Part VII – Procedures in respect of applications for orders
22. Date of hearingWhere an application is made for any order, the Clerk of the Court or the Registrar shall fix a date for the hearing of the application which shall be no more than twenty-one days from the date on which the application is filed.
23. Notice of proceedings
24. Absence of respondentWhere notice of proceedings has been served on the respondent in accordance with section 23 and the respondent fails to appear in person at the time fixed for the hearing, the court may—
25. Absence of applicantWhere, on the date of the hearing of an application for an order, the respondent appears in court, but neither the applicant nor the person on whose behalf the application is made appears either in person or is represented by his legal practitioner, the court may—
26. Explanation of ordersWhere the court proposes to make an order or an interim order, and the respondent is before the court, the court shall explain to the respondent—
27. Service of ordersWhere an order or interim order is made or varied by the court, the Clerk of the court shall arrange for the order or interim order to be drawn up on the relevant form prescribed in the Schedule; and the court shall cause a copy of the order or interim order to be served on—
28. Service other than personal service
29. Respondent to have noticeSubject to sections 24 and 28, a respondent shall not be bound by an order or interim order—
Part VIII – Enforcement of orders
30. Breach of orders
Part IX – Designation, duties and powers of enforcement officers
31. Designation of enforcement officersThe Minister may, by notice published in the Gazette, designate public officers within the Ministry responsible for gender affairs as enforcement officers for purposes of this Act.
32. Duties of enforcement officersAn enforcement officer shall have the following duties—
33. Powers of enforcement officers
Part X – Duties and powers of police officers
34. Duties of police officers
35. Issue of warrantWhere a court is satisfied, by information on oath, that—
36. Police powers of entry without warrant
37. Duty of police officers to assist victimsWhere a police officer has entered premises pursuant to sections 35 or 36 (1), he or she shall—
38. Powers of arrest where order is in force
39. Existing criminal law to apply
40. Refractory witnesses
41. Granting of bail
Part XI – Miscellaneous
42. Duty to report domestic violenceAny person who—
43. Service providers to assistPursuant to section 33 (4), any service provider may, upon being aware of an incident of domestic violence or soon thereafter as is reasonably practicable—
44. Protection of authorized personsNo civil, criminal, administrative or disciplinary proceedings shall be taken against a police officer, an enforcement officer, a service provider or any person authorized to perform any duty under this Act, in relation to any information given or any action done in good faith pursuant to this Act.
45. JurisdictionAny court within the area in which—
46. Single act of condonationA court shall not refuse to grant an order under this Act merely on the grounds only that—
47. Conduct of proceedings
48. EvidenceIn any proceedings under this Act (other than criminal proceedings) including proceedings by way of appeal, the court may receive such evidence as it thinks fit whether it is, or is not otherwise admissible in a court of law or not.
49. Standard of proofEvery question of fact arising in any proceedings under this Act (other than criminal proceedings) shall be decided on a balance of probabilities.
50. Restriction of publication of report of proceedings
51. Order by consentIn any proceedings under this Act a court may make any consent order by the consent of all the parties to such proceedings.
52. CounsellingThe court may, on making an order under this Act, recommend either or both parties to participate in counselling of such nature as the court may specify, including counselling by marriage advocate relations, religious leaders and chiefs.
54. Protection of mortgage
55. Rules of courtThe Chief Justice may make rules for the purpose of regulating the practice and procedure of the court in proceedings under this Act, and providing for such matters as are necessary for giving full effect to the provisions of this Act and for the due administration thereof.
56. RegulationsThe Minister may make regulations for the effective carrying out of the provisions of this Act, and without prejudice to the generality of the foregoing, such regulations may provide for—
History of this document
29 December 2006