Domestic Violence

What is Domestic Violence?

Domestic Violence is any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can involve, but is not limited to:

  • Psychological
  • Physical
  • Sexual
  • Financial
  • Emotional

Controlling Behaviour:

Controlling behaviour is defined as a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support; exploiting their resources and capacities for personal gain; depriving them of the means needed for independence, resistance and escape; and regulating their everyday behaviour.

Coercive Behaviour:

Coercive behaviour is an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim. However, there is no legal definition.

Threatening Behaviour:

Threat of harm generally involves a perception of

  • Injury,
  • Physical or
  • Mental damage.

Abusers often threaten to hurt or kill you, your children, other family members, or even pets. Abusers may also threaten to commit suicide, file false charges against you, or report you to child services. This type of threatening behaviour is also regarded as being controlling behaviour.

Intimidation

Intimidation tactics include:

  • Threatening looks or gestures,
  • Outburst of rage,
  • Destroying property,
  • Abuse of pets, or
  • Placing weapons on display.

Often intimidation is used to scare the victim into submission.

Violence:

Behaviour involving physical force intended to:

  • Hurt,
  • Damage, or
  • Kill someone or something.

Physical Abuse:

Domestic abuse occurs when either the woman or man in the relationship is physically assaulted by their partner through the use of violence which can often escalate to physical battery.

Emotional & Physiological Abuse:

The aim of emotional or psychological abuse is to chip away at a person’s feelings of self-worth and independence. Emotional abuse includes:

  • Verbal abuse such as yelling, name-calling, blaming, and shaming
  • Isolation
  • Intimidation, and
  • Controlling behaviour also falls under emotional abuse.

Additionally, abusers who use emotional or psychological abuse often throw in threats of physical violence to again control their partner’s independence.

Sexual Abuse:

Any situation in which you are forced to participate in unwanted, unsafe, or degrading sexual activity is sexual abuse. Forced sex, otherwise referred to as rape by a spouse or intimate partner with whom you also have consensual sex, is an act of aggression and violence.

(For more information on rape and marital rape please visit our Sexual Offences page under Criminal Law or speak to our specialist criminal lawyers.)

Economic or Financial Abuse:

Example:

  • Controlling of finances,
  • Withholding money, debit cards or credit cards,
  • Daily, weekly or monthly allowance
  • Stealing partners money
  • Withholding of basic necessities such as food, clothes and shelter
  • Sabotaging partners job
  • Preventing partners from seeking full or part time employment

An incident of domestic violence can lead to consequences in criminal law and civil law. The remedies in civil law are can be found in the Family Law Act 1996 and the Protection of Harassment Act 1997

Legal Aid

If you are a victim of domestic violence you are entitled to free legal aid.  For more information on legal aid please contact our specialist Family law solicitors or follow the link to read more about legal aid and your entitlement.  

What should you apply for?

What to do:

  • Apply for a Non-Molestation Order
  • Apply for an Occupation Order

Non Molestation Order

The aim of a Non-Molestation Order is to prevent your partner or ex-partner from using or threatening

  • Violence against you or your child,
  • Intimidating,
  • Harassing or
  • Pestering you, inorder to ensure the health, safety and well-being of yourself and your children.  

The definition of Molestation is not defined in the statute but is by common law due to the courts enjoyment of its own discretion. However, it is worth noting that the conduct must also fall between within the agreement of the statute and the court must be satisfied.

Who is an Associated Person?

Associated Persons:

A Non-Molestation Order will only be granted if the parties are ‘associated’ with each other. The meaning of an associated person is defined in the Family Law Act 1996. For the purposes of this Part, a person is associated with another person if:

  1. They are or have been married to each other;
  2. They are or have been civil partners;
  3. They are cohabitants or former cohabitants;
  4. They live in or have lived in the same household, (for reasons other than being the other’s employee, tenant, lodger or boarder);
  5. They are relatives;
  6. They have agreed to marry one another (whether or not that agreement has been terminated);
  7. They have or have had an intimate personal relationship with each other which is or was of significant duration;
  8. They have entered into a civil partnership agreement;
  9. With relation to a child, they are the parent of a child or have parental responsibility for a child
  10. They are parties to the same family proceedings (other than proceedings under this Part).

What is a Cohabitant?

Cohabitants are two persons who are neither married nor civil partners, but are living together as though they were husband and wife or civil partners.

Employee, Tenant, Lodger or Boarder

This includes a large group of people living together such as

  • Student accommodation
  • Two elderly people sharing accommodation companionably.
  • A sexual relationship is not required.

Child Applications for a Non-Molestation Order against Their Parent(s)

Under employee, tenant, lodger or boarder a child may claim to be associated with a parent therefore, they are entitled to apply for a non-molestation order against a parent.

However, if the child is under the age of 16 they must prove to have sufficient understanding. This understanding depends on each individual child, however a child is unlikely to have sufficient understanding if under the age of 10.

Relatives

Relatives are defined as:

  1. The father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandmother, grandfather, grandson, or granddaughter of that person or of that person’s spouse or former spouse; or
  2. The brother, sister, uncle, aunt, niece, nephew or cousin (whether of the full blood or of the half blood or by affinity) of that person or that person’s spouse or former spouse;

This includes, in relation to a person who is cohabiting or has cohabited with another person as husband and wife, any person would fall within paragraphs (a) or (b) if the parties were married.

Agreement to Marry One Another or Enter into a Civil Partnership

There are three ways that one can prove that there is an agreement to marry

  • There is evidence in writing of the agreement to marry
  • There was a gift of an engagement rink by one party to the agreement to the other in contemplation of the marriage
  • There was a ‘ceremony entered into by the parties in the presence of one or more other persons assembled for the purpose of witnessing the ceremony. Engagement parties do not count as a ceremony.

Parental Responsibility for Any Child

In relation to any child, a child’s parent or someone who has parental responsibility for the child.

In relation to an adopted child, the natural parent of the child; a parent of the natural parent; or a person with whom a child has been placed for adoption.

Same Families under the Adoption Act 1976

Parties to the Same Family Proceedings:

The list includes:

  • Parties to a contract application or the Adoption Act 1976 where there is tension between the potential adopters and the genetic parents.

If the applicant and respondent are therefore considered to be ‘associated’ the court can consider whether or not to make a Non-Molestation order.

Grounds:

In deciding whether and how to exercise its powers under Section 42(5) of the Family Law Act 1996 the court will consider all the circumstances, including the need to secure the health, safety and well-being of:

(a) The applicant; and

(b) Any relevant child.

The court aims to focus on the need for protection in the future rather than requiring proof of the fact or threat of violence in past.

Who is a Relevant Child?

Relevant Child:

A relevant child is ‘any child whose interests the court must consider’. The child does not need to be the biological child of either the applicant or the respondent. Relevant child is defined as:

(a) Any child who is living with or might reasonably be expected to live with either party to the proceedings;

(b) Any child in relation to whom an order under the Adoption Act 1976, the Adoption and Children Act 2002, or the Children Act 1989 is in question in the proceedings; and

(c) Any other child whose interests the court considers relevant.

 

Enforcement of Orders

  • It is a criminal offence for a person to do something that he/she is prohibited from doing by a non-molestation order without reasonable excuse.
  • A person can only be found guilty of the offence if when they engaged in the conduct they were aware of the existence of the order.
  • If the order is breached by acts of violence, the respondent is likely to be prosecuted under Section 42A.

Inter Parte Applications

Inter Parte Non Molestation Orders:

An Inter-parte Non Molestation Order is an order given with the other person’s knowledge.

Ex Parte Applications

Ex Parte Non Molestation Orders:

An ex parte Non Molestation Order is an application made by one party without the other party being present or being given notice of the proceedings.

This application will often be used when there is a need for the immediate protection of the victim and any delay in serving papers on the respondent and giving him/her time to reply may endanger the applicant. However, after an ex parte hearing has taken place it will be followed by an inter parte hearing, at which both parties will be able to present their arguments.

 

Accepting an Undertaking

Undertakings

  • An undertaking is a promise by the respondent, made formally in court that states the respondent will not act in the same manner again.
  • The court can accept an undertaking in any case where it has the power to make a non-molestation or occupation order.

However, an undertaking can be refused by the court under Section 47(3A) if the respondent has:

  1. Used or threatened violence against the applicant or a relevant child; and
  2. For the protection of the applicant or child it is necessary to make a non-molestation order so that any breach may be punishable under Section 42A

What is an Occupation Order?

An occupation order can remove an abuser from the home and can give the victim the right to enter or remain in the family home.

  • It is important to organise a safe environment once the molestation has stopped.
  • While it may be an infringement of a person’s rights to remove them from their home it may be the only possible way to provide effective protection for the victim/s.

An applicant can only obtain an occupation order against a respondent to whom they are associated with and whom he/she shared (or intended to share) a home with.

Married and Entitled Applicants

The applicant can only apply for occupancy if she/he is married to the respondent or is entitled to occupy the property.

An entitled person:

  • Is entitled to occupy a dwelling-house by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him or her the right to remain in occupation, or
  • Has home rights in relation to a dwelling-house.

Nearly all spouses and civil partners are regarded as being ‘entitled’ because both parties will have home rights. Anyone who has a right to occupy a dwelling-house is entitled, including:

  1. Those who own the house or rent together,  
  2. Those who have beneficial interest in the property by virtue of resulting trust, a constructive trust, a proprietary estoppel or an interest under a trust for land.

Property that can be sought

First, the home must have been intended to be the home of the applicant and a person to whom she/he is associated with. In other words, it must be the family home.

Example:

If the wife has her own private flat in London that she uses for work now and again, an occupation order could not be obtained concerning the flat as it was never intended to be the family home.

Secondly, the property must be a dwelling-house.

Example:

If a couple own a business together it would not be possible to get an order for the business premises.

The Significant Harm Test

The significant harm test is set out in the Family Law Act 1993.

The court must first ask “what will happen if the court decides to make no order at all”.

If the answer is that it is unlikely that the applicant or relevant child will suffer significant harm attributable to the conduct of the respondent, then the test is not satisfied.

However, if the court finds that it is likely that the applicant or relevant child will suffer significant harm due to the conduct of the respondent, the court must then ask if the respondent will suffer significant harm?

If the respondent would not suffer significant harm, then the court will make an occupation order. If the answer is yes, and both parties would suffer significant harm, then the court must decide whose risk of harm is greater.

If there is found to be an equal risk of significant harm to both the applicant and the respondent then the court is not obligated to make an order.

Harm

Harm is defined under the law as including:

  • Ill-treatment
  • The impairment of health (either physical, sexual, psychological or emotional)
  • For a child, harm also involves the impairment of development.

Significant Harm

Significant Harm has no definition under the Family Law Act 1996 however, under common law it has been suggested to me ‘considerable, noteworthy or important harm.’

‘Likely’

The word ‘likely’ has been defined in Section 31 of the Children Act 1989 as a ‘real possibility’ of harm. In other words it is almost certain that the applicant or child will suffer significant harm.

Ex-Spouse, Cohabitant and Non Entitled Applicants

If the applicant is not entitled to occupy the property, the question becomes whether or not the applicant is the ex-spouse of the respondent or is the cohabitant or former cohabitant of the respondent.

If she/he is the ex-spouse, Section 35 of the Family Law Act 1993 would apply. If she/he is the cohabitant or ex-cohabitant then an application should be made under Section 36 of the Family Law Act 1993.

The Family Home

Property:

An order under Section 35 and Section 36 is only available regarding the dwelling-house which was the actual or intended home of the applicant and the respondent. This is otherwise known as a Mandatory Order.

Mandatory Orders

The difference between a Section 35 and a Section 33 order under the Family Law Act 1993 is that under Section 35 the applicant must be given the right to enter or remain in the property, and the respondent must be prohibited from evicting the applicant.

When considering a Mandatory Order the general factors that the court shall regard are:

  • The housing needs and housing resources of each of the parties and of any relevant child;
  • The financial resources of each of the parties;
  • The likely effect of any order, or of no order, on the health, safety or well-being of the parties and of any relevant child;
  • The conduct of the parties in relation to each other and otherwise;
  • The length of time that has elapsed since the parties ceased to live together;
  • The length of time that has elapsed since the marriage or civil partnership was dissolved or annulled; and
  • The existence of any pending proceedings between the parties—
    • For an order under section 23A or 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with divorce proceedings etc.);
    • For a property adjustment order under Part 2 of Schedule 5 to the Civil Partnership Act 2004;
    • For an order under paragraph 1(2)(d) or (e) of Schedule 1 to the Children Act 1989 (orders for financial relief against parents); or

Relating to the legal or beneficial ownership of the dwelling-house.

Duration:

The duration of an order under Section 35 cannot exceed 6 months. However, at the end of the 6 months the applicant can reapply for a further extensions not exceeding 6 months each.  Whereas under Section 36 only one extension can be applied for.

For further details and advice please consult legalally’s experienced family lawyers who will support and guide you throughout your family issue.

Disclaimer

While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result legalally does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.

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