What is considered Domestic Violence
Domestic violence is violence against a person by another person with whom that person is, or has been, in a domestic relationship.
It can include:
- physical abuse such as slapping pushing and any physical sought
- sexual abuse
- psychological abuse
- threats of the above
- damage to property if it makes you fear for your safety.
Allowing a child to witness any of these things can amount to child abuse.
Help available for victims of Domestic Violence
There are practical and legal remedies for domestic violence. The obvious practical one is to leave the home, but this is rarely a good idea from a legal standpoint. Protection from domestic violence is a legal right and injunctive orders are freely available from the Courts.
Legal remedies are available under the civil law from the Family Court or the under Part IV of the Family Law Act 1996. They are often referred to as injunctions. Further remedies may be available under the criminal law by asking the police to prosecute the offender as domestic violence is an assault and a criminal offence. A magistrates court can make a restraining order.
There are basically two kinds of protection Orders which the Family Court can make. These are:
- A Non-Molestation Order
- An Occupation Order.
They can be, and often are, combined. Their purpose is to protect the applicant and any children from harm and being family proceedings the Court is free to make any other Order required of its own volition.
These have the effect of ordering your spouse or partner not to assault you and not to molest, harass or otherwise interfere with you. The Order will apply to your partners own actions and the actions of anyone acting under his or her direction.
Molestation is defined as including just about any form of unpleasant harassment. In cases where there has been violence in the past towards the children, or threats of violence to them, the Order will extend to and apply to the named children.
Both cohabitees and married couples can apply for Non-Molestation Orders. They are also available to people who have lived together as husband and wife, and people who live or have lived in the same household. Thus same sex couples are included.
Unlike Occupation Orders, there is no time limit to the duration of a Non-Molestation Order. It can be made to last till further Order.
When making Non-Molestation Orders, the Court concentrates on the protection of the victim rather than fairness to the perpetrator of the violence.
Who can apply for a Non-Molestation Order?
Application can be made by any associated person within existing family Court proceedings, or by a free-standing application. Associated persons include:
- parties that have been married or were civil partners.
- cohabitants or former cohabitants.
- parties that live or have lived in the same household, other than because one of them is or was the other’s employee, tenant, lodger or boarder.
- immediate relations and other close relations such as grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, step-parents and step-children.
- those who have agreed to marry, or have had an intimate personal relationship.
- the parents of a child or who have had parental responsibility for a child; and
- those that are party to the same family Court proceedings.
These are Orders that your partner leave the home or in certain cases uses only part of it. Thus, your partner can be ordered not to come within a certain distance of the house and he or she can be ordered to let you come back into the home if you have left. Occupation Orders are most commonly made in cases of domestic violence, but they can be applied for if there is no violence but simply a dispute over who should occupy the property.
These are not permanent Orders and will only apply for a limited time. They will however give a breathing space to enable other legal proceedings to be brought and if appropriate obtain permanent possession of the home.
The availability of Occupation Orders is far more restricted than that of Non-Molestation Orders as they incur a greater infringement of the rights of the Respondent. Occupation Orders must be seen as a last resort in an impossible situation.
An Occupation Order, if made can have a wide impact. If a husband is removed from the house and the wife remains there, an element of status quo will develop which would mean that the father is most unlikely to obtain a Residence Order with regard to the children and in ancillary relief applications where the husband has been forced to find alternative accommodation he will be at a significant disadvantage and the Court might well make an Order transferring the house into the wife’s name.
As Occupation Orders are an emergency procedure delay in applying is likely to prejudice an application.
Who can apply for an Occupation Order?
The Family Law Act makes a distinction between married couples and cohabitees, and a further distinction between same sex couples unless they have entered into a civil partnership. Your application will also depend upon whether you have an entitlement to occupy the home as an owner or tenant. If either of these is the case and you have a right to occupy, it does not matter what your relationship to each other is and you are entitled to make an application under Section 33 FLA.
If you do not fall into the category of owner or tenant and you have no legal right to occupy the home, you must apply under section 36 FLA.
If neither you nor your partner is entitled to occupy the property then application is under section 38. S38 is not available to same sex couples who are not in a civil partnership.
What the Court will consider
The Court must consider different factors depending upon the status of the applicant.
Section 33 applications for couples each with a legal right of occupation.
The Court must consider:
- a) The housing needs and housing resources of each partner and of any child living with the parties.
- b) The parties’ financial resources.
- c) The likely effect if an Order is made, or not made, on the health and safety and well-being of both parties and any child.
- d) The parties’ conduct towards each other.
Having considered these points, the Court must then apply what is called the balance of harm test. It will only make an Order if it appears that the person applying for the Order, or any child, is likely to suffer significant harm as a result of the behaviour of the Respondent if an Order is not made.
It will not make an Order should it appear that the Respondent or any child is likely to suffer significant harm if the Order is made, and the harm that they are likely to suffer is as great, or greater than the harm that the applicant would be likely to suffer if the Order is not made.
The possible Orders are to:
- enforce the Applicant’s entitlement to remain in occupation as against the Respondent.
- require the Respondent to permit the Applicant to enter and remain in the dwelling-house or part of it.
- regulate the occupation of the dwelling-house by either or both parties.
- if the Respondent is also entitled to occupy, the Order may prohibit, suspend or restrict the exercise by him, of that right or restrict or terminate any matrimonial home rights of the Respondent.
- require the Respondent to leave the dwelling-house or part of it.
- to exclude the Respondent from a defined area around the dwelling-house.
- declare that the applicant is entitled to occupy the dwelling-house or has matrimonial home rights in it.
- provide that matrimonial home rights of the applicant are not brought to an end by the death of the other spouse or termination of the marriage.
If the dwelling-house is rented or subject to a mortgage, the landlord or mortgagee must be served with notice of the proceedings in Form FL416. He or she will then be able to make representations to the Court regarding the rent or mortgage.
Section 36 applications where the applicant does not have a legal right of occupation.
The Court will consider firstly the 4 factors set out above for Section 33 FLA. It will then also consider:
- a) the nature of the relationship. Cohabitees are at a disadvantage here as the Court must give regard to the fact that the parties have not given each other the commitment involved in marriage.
- b) the length of time that they have lived together as husband and wife.
- c) whether there are any children or stepchildren.
- d) the length of time since they separated.
- e) whether there are any pending proceedings about the ownership of the home or support for the children.
The Court will then apply the balance of harm test, but the requirement that the Court must make an Order if the likelihood of harm to the Applicant is greater does not apply. The Court may use its discretion.
An Order under section 35 or 36 of the Act may:
- give the applicant the right not to be evicted or excluded from the dwelling-house or any part of it by the Respondent for a specified period
- prohibit the Respondent from evicting or excluding the applicant during that period
- give the applicant the right to enter and occupy the dwelling house for a specified period
- require the Respondent to permit the exercise of that right
- regulate the occupation of the dwelling-house by either or both of the parties
- prohibit, suspend or restrict the exercise by the Respondent of his right to occupy
- require the Respondent to leave the dwelling-house or part of it or exclude the Respondent from a defined area around the dwelling-house.
Section 38 applications where neither party has a right of occupation.
The Court will apply all the factors above and also the balance of harm test where it will have discretion.
When making an Order under section 33 or section 36 The Court can also make Orders about:
- a) the repair and maintenance of the home
- b) payment of the rent or mortgage or other outgoings
- c) use of the contents
- d) a requirement that reasonable care is taken of the contents.
Under section 37 or 38 of the Act may:
- require the Respondent to permit the applicant to enter and remain in the dwelling-house or part of it
- regulate the occupation of the dwelling-house by either or both of the parties
- require the Respondent to leave the dwelling-house or part of it
- exclude the Respondent from a defined area around the dwelling-house.
Children under 18 may apply for a Non-Molestation Order, but if they are under 16 they will need the permission of the Court, given only if the Court is satisfied that the child has sufficient understanding.
Making the Application
Applications for Non-Molestation or Occupation Orders are made to the Family Court for the area where you live on Form FL401.
The form should be completed and accompanied by a statement setting out what has happened. It must then be filed with the Court. There is no court fee
The Respondent must usually have 2 clear days’ notice of the hearing and should be served personally with the documents.
Applications without notice to the Respondent are possible when matters are extremely urgent or issue and service of the proceedings upon your partner could result in violence. It is unlikely that Occupation Orders will be made without notice to the respondent. Even if it is made, it is likely to be only for a short period and until what is known as the ‘return’ date when the other side will be required to attend Court and will have the opportunity to have his say.
The application should normally be supported by a signed statement dealing with:
- the marriage and any children
- the relationship between the parties
- the description of the home, and the manner in which it was acquired and the parties respective rights in the home
- the circumstances leading up to the application
- the resources of the parties
- the respective needs of the parties
- any harm that would be suffered by either of the parties or the children if the Order asked for was not made
- the period of time over which an Order is requested or required
- any proceedings which have been brought between the parties and the position with any proceedings that are pending.
If proceedings are pending between the parties, the application must be made in those pending proceedings. Where violence has been used or threatened by the Respondent against the applicant or any relevant child, justifying the application for a power of arrest the actual circumstances of that violence must be fully set out in the statement.
Where a hearing is urgent and there are grounds to apply without notice include the reason in your statement together with the grounds for the application. The Court will then arrange either an early or immediate appointment with the District Judge.
If you are applying on notice, serve a copy of the application and copy of your statement on the Respondent not less than two days before the hearing.
Powers of arrest
If the Court makes a Non-Molestation Order or an Occupation Order it can attach a power of arrest to the Order. Thus where the Respondent has used or threatened violence against the applicant, a power of arrest will be attached to the Order in all but exceptional circumstances. This means that if the Order is breached, the police can immediately arrest the party and bring him before the Court without the need to obtain a warrant. When a power of arrest is given, a copy should be lodged with the local police station.
An undertaking is a promise by the Respondent made formally to the Court. The Court can accept an undertaking in any case where it has the power to make a Non-Molestation or Occupation Order. Where the Court accepts the undertaking, an Order is normally not made. Undertakings are just as binding as a Court Order and have the advantage of not requiring proof to be given to the Court of the violence alleged or the Respondent having to make any admissions or risking a judgment being made against him.
An undertaking can be enforced as if it were an Order of the Court. However an undertaking cannot have a power of arrest attach it to it. It has become the norm to accept undertakings when offered in Non-Molestation cases.
The local authority has a duty to house homeless people who have a ‘priority need’. The victims of violence with dependent children living with them are always a priority need. If there are no children the woman may well still be regarded as a priority need if she risks further violence should she return home.
Example Statement in support
IN THE FAMILY COURT AT .
B E T W E E N :
– and –
Statement of ()
I …. the above named Applicant will say as follows:
- I was married to the Respondent on the (date) and since have resided at (address) (the dwelling house) with the Respondent and our (number) children (names closed brackets who were born on the )date)
- The dwelling house was acquired in (date) for the sum of (amount) and conveyed into the Respondent’s sole name as beneficial owner of which some (amount) was provided by ….. £ ….. buying the (my parents) and £ ….. by way of mortgage with the ….. building society. The mortgage interest and capital payments amount to £ ….. are ….. and at present are fully paid up (a £ ….. in arrears).
- On the (date) the Respondent commenced an association with (give name) and since then he has resided away from home for various periods generally weekends. He has now returned to the home demand that I should take the same to enable him to turn in Order to sell the home. By reason of the Respondent’s behaviour as set out here after I left the home children on the (date) but since the (date) have returned that the matrimonial home where I occupy only ….. which is unsuitable for myself and children cost …..
- the Respondent is a ….. and the firm’s £ ….. per ….. /a self-employed as a ….. with no fixed source of income from the work he does he terms an average £ ….. the month.
- if I and the children were required to move (or the Respondent would continue residing at the home) we would suffer significant harm the following ways: I will be in constant state of uncertainty as to what was happening; the children would be unsettled by the tension and unpleasant atmosphere in the home; children will be unsettled by the constant use of me from the Respondent; the children would have changed schools.
- I presented a petition for divorce based on ….. on the ….. (and directions have now been given for the hearing of the Sioux) but no lodgement service has been filed.
- I cannot anticipate any reconciliation between us and there is no possibility of any resumption of cohabitation between us.
- I therefore asked the Court make an Order in the term of my application and Order that the Respondent should have a period of six weeks to find other accommodation, that in the meantime we should share the occupation of the house following manner ….. ; and that he should pay 75% of the outgoings for that period amounting to some £ ….. or the sum of £ ….. of the mortgage interest.
Application Form FL401