The victims of violent domestic abuse need reassurance that their property is protected by the law, says Byron James
The damaging of property can be a significant aspect of domestic abuse; it is, however, poorly dealt with under the current law.
The only section under the Family Law Act 1996 (FLA 1996), Pt IV that deals with property specifically is s 40. This provision, at first glance, would appear to open many doors to a potential applicant. It allows for:
- property to be kept safe, often referred to as a “preservation order” (s 40(1)(d));
- property to be transferred (s 40(1)(c)); and
- the discharge of rent (s 40(1)(a)(ii)).
UNENFORCEABILITY OF S 40
However, despite such lofty promises, this section is fundamentally flawed as there is no provision either in FLA 1996 or elsewhere to deal with enforcement. The Court of Appeal dealt with this specific point in Nwogbe v Nwogbe [2000] Fam Law 797, [2000] 3 FLR 345, where it was held at para 27 that “it is clear…s 40 orders are not enforceable”. While this particular case concerned the enforceability of an s 40 obligation to
