Bookmark and Share
Print this page   Deutsch

Left Sidebar with Navigation for this Section


Andrea WoelkeFor advice contact Andrea Woelke on 020 7407 4007 or email him. We do not do legal aid.

Search Alternative Family Law

Disclaimer

Right Sidebar: Links and Further Information

red chillies

 

External Links

Application Form FL401

Court Service Information Leaflet

Support

Broken Rainbow

If you cannot view pdf files, download Adobe Acrobat Reader
here for free:
Download Adobe Reader

Main Content

Domestic Violence

If you or a child are in danger, dial 999 to call the police immediately.

Unfortunately couples do not just fall out of love and then separate. Some people make their partner’s life unpleasant; some couples make each other’s lives unpleasant; some people are using physical violence. While those asking for help from the police and the courts are largely women who seek protection from men, there is also violence against men by women and in same-sex relationships. Perhaps men feel too embarrassed to seek help, perhaps they feel that they are physically strong enough to ensure that they are not at real danger when attacked and just stomach regular punches, bruises and pain. It is difficult to find these things out as they happen mostly behind closed doors in people’s homes.

Constant harassment and passive-aggressive behaviour are also forms of (non-physical) violence. Sometimes the physical side is directed against objects, for example by destroying or throwing away something dear or important to the other. The law against harassment is trying to protect against these type of aggression as well.

This page sets out in brief the law that is designed to protect people from harassment and domestic violence. The courts can move very fast in this area and orders can be effective.

There are two groups of orders the court can make:

The applications can be made when there is mild harassment which nevertheless means that that the applicant’s health and well-being is affected and no actual violence is necessary. If there has been violence, it is often useful to have photographs of bruises etc. or a record from the GP or Accident & Emergency Department of any injuries.

Please remember that any order the court makes is in the end a piece of paper only. The respondent may obey by it and can be punished and ultimately imprisoned for a short time if they do not. The order may also mean the police may come faster. However, the order does not actually stop the respondent from harassing or being violent. Often the police can help without the need for an order and will do so effectively. This depends to a large extent on the way the local police force deals with the matter.

If you or a child are in danger or fear violence, dial 999 to call the police immediately. If there is no immediate danger, you should still call your local police station or the domestic violence unit (or equivalent, e.g. the Metropolitan Police’s Community Safety Unit) of your local police to discuss your circumstances with them. Some forces are able to make a note against your address, so that if you call, they will prioritise the call and the police will come faster. You will find their details in the telephone directory under “police”. The non-urgent contact number for the Metropolitan Police (if you live in London) is 0300 123 1212. to top of text

Occupation Orders

An occupation order can be an order regulating the occupation of a home, e.g. who sleeps in which room, who is allowed to go into which part of the house etc. It can also ban one person from entering a home all together or coming into its vicinity. Such an order is regarded as drastic, especially if the person being banned from the home has a right to live there because they are an owner or tenant of the property.

The rules vary slightly depending on whether the couple is married or not and depending on whether the parties have a right to live there.

In essence the court will look at all the circumstances of the case and make an order that is necessary. In particular the court will consider the following factors:

There are additional factors depending on the constellation, for example how long the couple lived together and have been separated if they are cohabitants and former cohabitants. Most of these are common sense.

In any case the court needs to balance the harm the applicant and any relevant child is likely to suffer if the order is not made against the harm the respondent and any relevant child is likely to suffer if the order is made.

If the applicant has a right to live in the house or is a spouse or civil partner, the court must make the order unless the likely harm on the respondent is as great. Such an order can be made for a period of up to six months and extended more than once.

If the applicant is a former spouse or civil partner, the court will decide whether to make an order after looking at all the circumstances and then balance the likely harm to decide on the details of the order. Such an order can be made for a period of up to six months and extended more than once.

If the applicant has no right to live in the house, the court has no duty to make the order, but still needs to balance the likely harm. In these cases the order can only be for a maximum of six months and can only be extended once. to top of text

Anti-harassment Orders

These are called “non-molestation orders”. They can be made between two persons who are or where in a relationship, married, civil partners or cohabitants or are relatives or parents of the same child. The definition is wide to include nearly all types of family relationships. The order can be made by a court (if it thinks it is necessary) even without an application within other family proceedings. If someone applies for an occupation order, the court must consider whether to make a non-molestation order as well.

When considering whether to make a non-molestation order, the court needs to take into account all the circumstances including “the need to secure the health, safety and well-being” of the person in whose favour the order would be or a child.

Typically an anti-harassment order would read like this:

"The respondent is forbidden to:

  1. use or threaten any violence towards the applicant and must not instruct or encourage any other person to do so;
  2. intimidate or harass the applicant and most not instruct or encourage any other person to do so;
  3. come within 100 metres of the applicant’s home;
  4. communicate with the applicant whether by letter, text message telephone or other means except through the applicant’s solicitors;
  5. threaten the applicant."

Once the respondent is aware of the order, if they then breach it, that is a criminal offence and can be punished with a fine or imprisonment up to five years in the Crown Court or 12 months in the magistrates court. This means that it is not necessary for the victim to press charges. If the Crown Prosecution Service is not pursuing the case, or for any other reason, the applicant can still apply to the court for the breach to be dealt with as contempt of court. The respondent can then not be prosecuted for the same breach. Some have commented that this has led to a decrease in applications because victims usually do not want to see their former partner go to prison but just want the harassment or violence to stop. to top of text

Undertakings

An undertaking is a solemn promise to do something or not to do something made to the court. In cases where one party applies for a non-molestation order, the respondent sometimes offers to give an undertaking as a promise not to do certain things without having to agree that they have in the past been harassing the applicant. The court can accept this undertaking unless the respondent has used or threatened violence and the court thinks it has to make an order to protect the applicant. A breach of an undertaking can be punished as contempt of court with a fine or imprisonment, but the respondent cannot be arrested immediately for such a breach. to top of text

Procedure

The application is made on a form, which is fairly lengthy, supported by a sworn statement (affidavit or affirmation) setting out the facts and the reasons for making the application.

Time is usually very tight in cases of harassment or domestic violence. Therefore in almost all cases, the applicant will make an application first to the duty judge on the day the application is issued. This is a short hearing without notice to the respondent. In almost all cases this is necessary to get a hearing date fast (usually within a week or two) and sometimes this is necessary because there is a fear that as soon as the respondent hears about the application, they may flip and this may cause them to harass the applicant even more or to become violent. The judge may then already make a non-molestation order to protect the applicant from harassment. The court rarely makes an occupation order at this stage. This is because nobody has a right to harass someone else as such, but may have a right to occupy the home, which an order would restrict or excluded.

If an order has been made without notice (or with notice and the respondent was not at court) the order must be served on the respondent, given to them, personally, usually through people who specialise in this work, called process servers. Your solicitor will organise this.

There will always be a court hearing with notice to the respondent so that they can put their case to the court. The court can then extend the orders made without notice, make other orders, or dismiss the application, depending on the circumstances. Sometimes there is not enough time to hear the evidence and if there is no agreement the matter will need to be listed again for a longer hearing. The courts are sometimes so clogged up that the matter cannot be heard for several weeks or months. Unfortunately, this is the case due to underfunding from the Ministry of Justice.

For advice on your specific circumstances contact Alternative Family Law: ring or email us.to top of text

April 2009


Disclaimer

This is an outline of the law, practice and procedure in England and Wales. It should not be taken as specific advice. All families and couples are different. The law may have changed since this was written and we therefore accept no liability for inaccuracies. Where examples are given, your personal circumstances may vary slightly, but the difference may be significant for the outcome of the legal process. Contact us for specific advice on your own circumstances.

We take no responsibility for the content of any web pages linked to outside Alternative Family Law.