The criminal side of family law

The criminal side of family law

Family law usually conjures up thoughts that revolve around separation, children and rights and obligations of the spouses towards each other and towards their children. But rarely will it ever make someone think that family law has a criminal side as well. How can family matters ever result in criminal matters? Is it not true that what happens within the family remains in the family? And if a married couple separates, surely that belongs purely to the civil law section. So when, and how, can family matters ever be criminal matters as well?

Strictly speaking, if a couple separates or is in the process of separation and the spouses stick to their separation agreement, or to the decree delineating the amount of maintenance due, or the terms of custody and visitation rights, then, obviously, no criminal matters arise. Unfortunately, however, this is simply not always the case and, at times, instead of resorting to mediation to amend the separation agreement or file an application to change the decree, a party, for his/her own reasons, takes matters in his/her own hands by stopping maintenance and/or stopping the other spouse from having access to his/her children. When someone violates or breaches the separation agreement or a court order it is then that family matters turn into criminal matters.

But is it just that family matters do turn into criminal matters? If the couple is already in disagreement over such crucial issues, won’t it antagonise the “perpetrator” even more?

When a spouse desists from giving due maintenance, s/he is committing a contravention and, in turn, if a police report is filed s/he would have to appear in court in the criminal section of the Family Court. The same is to be said if one spouse is denying the other spouse access to the child. Many who are committing such contraventions do not realise the gravity of the situation and, if found guilty, they can be sentenced to a fine and/or detention and even, if matters get worse, to imprisonment!

Obviously, the principle of recidivism applies and a first-time “offender” will not be given the same punishment, if any, as one who is a recidivist. A recidivist is a person who keeps committing the same crime, or contravention, over and over again. However, is it worth risking being punished for committing a contravention when such could have been avoided? It is true that, sometimes, the road is not so clear-cut and family matters are often loaded with emotions but even in such difficult and emotionally charged circumstances, one should always abide by the law.

In fact, there are measures one can resort to that might reduce the amount of maintenance due and even change or stop visitation rights if the case does arise. One has to deal with such matters through the legal system and not by raggion fattasi, that is by taking the law into one’s own hands because the end result is never a good one.

Another criminal aspect of family law is the issue of domestic violence. In such circumstances, the battered spouse can file a police report and a complaint that s/he has suffered domestic violence. Usually, sufferers of domestic violence keep on suffering in silence not knowing that help can be sought from different entities – the court, the various shelter homes and even Appoġġ, which offers services both to the victim and to the perpetrator.

Another contravention, which, although strictly speaking, is not restricted solely to family matters, is harassment. This is a common contravention committed against family members, especially during separation proceedings. Harassment takes the form of actively annoying, disturbing and/or threatening another family member. This usually happens purely to spite the other spouse with the result that such spouse is living in complete terror. However, instead of taking matters in their own hands, such victims of harassment have the option to take the matter to court and justice will take its course. Usually, perpetrators do not realise the matter could end up in court and, often, only by taking the matter to court can such harassment be stopped.

Criminal matters do not solely belong to the serious crimes we are usually accustomed to hearing about but are also extended to other issues such as family matters. Therefore, it would be better for people to stop and think before taking the law into their own hands because, although one might think that one is “winning” by not giving maintenance and so on, at the end of the day s/he is bound to lose because in fact s/he would be breaking the law.

Dr Mangion is a lawyer and a published author with a special interest in family and child law.

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