More information on Domestic Violence

What is Domestic Violence?

Domestic violence, or as it more properly referred to, domestic abuse, is any form of behaviour which causes physical, emotional or sexual harm within a relationship. It is not limited to physical acts of aggression, nor is it dependent on the gender of the perpetrator or the victim.

What Remedies are available?

The main provisions in relation to domestic abuse are contained in the Family Law Act 1996, (although other remedies may be available depending on the circumstances). Two principle remedies are available:

Non-Molestation Orders

This is an order which regulates one person’s behaviour towards another. Such orders commonly forbid someone from using or threatening to use violence against another person, intimidating, harassing or pestering them. They also forbid that person from instructing, encouraging or in any way suggesting that someone else should carry out any of those acts.

Non-Molestation Orders can also extend to provide protection for children.

In deciding whether, and in what way, to make a Non-Molestation Order, the Court must take into account all the circumstances of the case including the need to secure the health, safety and well being of the applicant and any relevant child. The test is deliberately wide and provides the Court with a great deal of discretion when determining a case.

Occupation Orders

This is an order which regulates occupation of the family home. The specific type of order available depends on the nature of the relationship between the parties and their rights in relation to the home. However, in appropriate circumstances such orders can require the other party to return to and occupy the home.

Who Can Apply?

The Family Law Act 1996 is designed to offer protection to family members or others involved in a domestic relationship (including, as a result of recent amendments same sex couples). Only “associated persons” are permitted to apply for orders. They are defined as people who:
a) are spouses or former spouses;
b) are cohabitants or former cohabitants including cohabitants or former cohabitants of the same sex;
c) are living or have lived in the same household otherwise than merely by reason of one of them being the others employee, tenant, lodger or boarder;
d) are relatives;
e) have agreed to marry one another (whether or not that agreement has been terminated)
e2) they have or have had an intimate personal relationship with each other which is or was of significant duration
f) (in relation to any child) are either the parents of the child or have parental responsibility for the child;
g) Are parties to the same family proceedings, or
h) Are connected through adoption

For those who do not fall within one of the above definitions, protection may still be available under the Protection from Harassment Act 1997 or the Domestic Violence, Crime and Victims Act 2004.

In addition to the requirement to be an “associated person”, when applying for an Occupation Order, the applicant must also show that he or she is either an “entitled person”, a person with matrimonial home rights or a “non-entitled person”. The orders available will depend on which category the applicant falls into. Whichever category applies, the Court must take the following factors into account:
a) the housing needs and housing resources of each of the parties and of any relevant child
b) the financial resources of each of the parties
c) the likely effect of any order, or of any decision by the court not to exercise its powers, on the health, safety or well being of the parties and of any relevant child;
d) and the conduct of the parties in relation to each other and otherwise

There are additional considerations depending on the status of the applicant.

Emergency Applications

In appropriate circumstances it is possible to make an emergency application to the Court within a very short period of time, possible the same day. These are know as “without notice” applications. As the name suggests, an application is made without the Respondent being aware of the application. The Court must decide whether the circumstances warrant the making of an order without notice to the Respondent.

Although the Court has the power to make both Non-Molestation Orders and Occupation Orders without notice, in practice it is rare for Occupation Orders to be made in this way.

Where an order is made without notice to the Respondent, the Court must arrange a further hearing to give the Respondent an opportunity to be heard, as soon as is “just and convenient”, usually within 7 days.

Powers of Arrest

Since 1st July 2007, breach of a Non-Molestation Order is in itself a criminal offence. The police therefore have the power to arrest a person alleged to have breached an order and bring them before the criminal courts in the usual way.

If the Court grants an Occupation Order and it appears to the Court that the Respondent has used or threatened to use violence against the Applicant or a relevant child, then the Court shall attach a power of arrest to one or more provisions of the occupation order unless it is satisfied that, in all the circumstances of the case, the Applicant or child will be adequately protected without such a power of arrest. Such a power of arrest empowers the police to arrest the Respondent and bring him or her back before the Court within 24 hours. The Court will then determine whether the Respondent is guilty of a breach of the order. If the Court cannot deal with the issue immediately, the Respondent can be placed on bail or remanded cannot deal with the issue immediately, the Respondent can be placed on bail or remanded to prison. If found guilty of breaching the order, the Respondent can be fined or imprisoned.

Protection from Harassment Act 1997

This provides an alternate method of seeking protection. It applies to everyone, irrespective of the nature of the relationship between parties unlike the Family Law Act 1996.

The Act prohibits conduct which amounts to harassment. This included behaviour which causes alarm or distress. There must also be a “course of conduct”, which means that there must be at least 2 instances of conduct.

It is possible to apply for an injunction preventing the defendant from pursuing conduct which amounts to harassment. It is also possible to apply for financial compensation resulting from harassment. There is no provision for a power of arrest to be attached to such an injunction, although the Court does have the power to order a warrant of arrest following an alleged breach. Breach of an injunction under the Act is a criminal offence.

In addition, the Act created two new criminal offences. The first is the offence of harassment. The second is the offence of putting a person in fear of violence. In both instances, a complaint of such behaviour should be made to the police as soon as possible. Where a person is charged with either offence, the criminal court has the power to make a restraining order, regardless of whether the defendant is convicted or acquitted.

For further advice contact one of our Family Law specialists.

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