Domestic Violence

 Help available from the courts where there is domestic violence

Domestic Violence

Domestic Violence is never acceptable. It should not be tolerated. Help is available from the courts if you are being subjected to domestic violence and there are a number of support agencies and charities who are able to help often without charge.

Protection from domestic violence is available under both the civil and criminal law. The civil courts-the County Court or Family Proceedings Court-will grant an injunction which is simply an order of the court ordering the perpetrator of the violence to refrain. Breach of the order can result in prison. Under the criminal law a magistrate’s court can make similar orders and proceedings can be brought under the Protection from Harassment Act.

Civil injunctions and orders available

 

Non-molestation Orders

These are a Court Order forbidding your spouse or partner from using or threatening violence against you or your child, or intimidating, harassing or pestering you. The non-molestation order can include specific instructions such as that the violent partner does not telephone you or come within a certain distance of your home and work. Unlike occupation orders a non-molestation order need not be limited in time and can be for an indefinite period.

Occupation Orders

These are orders which decide who should carry on living in the home during the short-term after there has been violence or harassment and it is apparent that the parties cannot continue living together. The order only deals with the right to occupy a property by virtue of the Matrimonial Homes Act and does not affect ownership or long-term entitlements.

Examples of the type of Occupation Order the Court can make are:

  • An Order as to who should remain in the home if your partner is trying to get you out.
  • An Order allowing you back into the home if your partner has already thrown you out or is preventing you from entering into the home.
  • An Order to exclude your partner from all or part of the home.
  • An Order imposing a set of rules about living in the home.
  • A Declaration that you and your partner must live in separate parts of the home.
  • An Order to exclude your partner from coming within a certain distance of the home.
  • An Order that your partner should leave the home or a part of it.

The application is most likely to be made in cases of Domestic Violence but also where it is apparent that it is simply impossible for the parties to continue living under the same roof.

Who can Apply?

In order to apply for an occupation or non-molestation Order you must be an ‘associated person’. This means that you must be associated with the other party in one of the following ways:

  • You are or have been married to each other
  • You are cohabitants or former cohabitants
  • You live or have lived in the same household (but not just as employee, tenant, lodger or boarder)
  • You are relatives
  • You have formally agreed to marry each other
  • You are both the parents of the same child or have had parental responsibility for that child
  • You are both involved in the same family proceedings (e.g. divorce)

If you are a woman without children who has never lived with your abuser you are therefore excluded from applying for orders under Part 4 of the Family Law Act and will have to seek a remedy under the Protection from Harassment Act.

There are also additional conditions on who can apply for occupation orders. You must have an existing legal right to occupy the home, unless you are married to the other party, or have lived together as man and wife. Accordingly gay couples are excluded from this protection.

Help available under the criminal law

Anti-Harassment Injunction

 

These are Orders made under the ‘Protection from Harassment Act 1997’ which makes harassment a criminal as well as civil offence. As such the police have powers to intervene and arrest a person suspected of harassment. Commonly these injunctions are used to prevent harassing behaviour by neighbours, protesters, family members, the media etc, but they also have a place in family proceedings.

Harassment can include nuisance phone calls, stalking, threats, excessive noise etc. And more or less any behaviour which causes you “alarm” or “distress”. The harassment has to have happened more than once. In the case of stalking you must show the behaviour caused you to think that person was likely to use violence on you. In extreme cases, a Crown Court may sentence up to 5 years in prison.

In many areas police have specialist trained Domestic Violence Officers who will contact you, and who will support you during any legal proceedings. Your abuser can be held, pending investigations by the police, for up to 24 hours (36 at weekends) before he has to be taken before a court. Or he can be released on police bail. A condition of police bail is likely to be that they do not contact you.

The criminal law can offer you some protection, but its main purpose is to deal with the offender. Many aspects of controlling and abusive behaviour cannot be dealt with under the criminal law, and you may well be better off with a civil injunction.

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Useful eBooks to download

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Related FAQs

Would I get Legal Aid to help me apply to a court for protection from Domestic Violence?

Although legal aid has been abolished for most family cases it is still available in instances of domestic violence. Dependent upon your financial eligibility you may well be granted legal aid and should approach a firm of solicitors carrying out legal aid work.

Will the order which is made also apply to the children?

The court will be very concerned for the children’s welfare. Domestic violence injunctions will include protection for the children even if there has been no violence towards them. You should however give thought to how your partner is to have contact with the children and how their safety can be ensured.