What is domestic violence?
There is no one definition of domestic violence but in broad terms in the law it is described to include any form of physical, sexual or emotional abuse which takes place within the context of a close relationship. In this sense, current partners are clearly included, however, ex-partners have also been considered a part of the definition of a close relationship.
The violence can be directed towards male or female irrespective of the whether they are in a heterosexual or homosexual relationship. Originally, the protection was built in mind of heterosexual couples but later legislation has proved that the same principles are applicable in relation to same-sex couples. This was achieved by the principles introduced in Domestic Violence, Crime and Victims Act 2004 and Civil Partnership Act 2004.
Children are also often affected by domestic violence and the effect can be direct in cases where they are themselves subject to violence or indirectly by witnessing the abuse.
What is the need to protect people from becoming victims?
One of the main considerations of domestic violence in practice is the impact such abuse could have on the victim. Taking that into consideration, the government has focused on protecting those individuals and the rest of their families. On the other hand, other important consideration has been the privacy of the family life and the need for the government not to be too intrusive into people’s private life.
Issues however arise since currently statistics show that domestic violence accounts for nearly 25% of all recorded crime. A considerable difficulty is further caused due to figures showing that on average before first report to the police of such behaviour is made, there are around 30 previous incidents of violence. Furthermore, a large proportion of subsequent incidents remain unreported. This very high re-offending rate and insufficient complaints made, has caused the government extreme concern to protect the victims, safeguard the family relationship and protect the children of the family.
What are the remedies under the law?
Family Law Act 1996 introduced a single set of injunctive remedies available to all courts with civil jurisdiction and in particular regard to family matters. Those remedies include giving personal protection from domestic violence and regulating the occupation of the family home.
The remedies themselves can be seen as two types the first being a non-molestation order and secondly an occupation order. A combination of the two is also available where appropriate.
Those orders are only imposed where the judge is satisfied on balance of probabilities that judicial intervention is required to control the behaviour which is subject matter of the complaint before the court.
Occupation orders are orientated towards protecting the ones remaining in the home. Therefore, typically they are granted to exclude the perpetrator of violence from the home fully or from a defined part.
An application for an occupation and the type of occupation order depend on the position of the parties with regards to the interest in the family home. There are broadly three different situations:
Where the applicant is entitled by virtue of beneficial estate or interest or other home rights;
Where the applicant is not entitled but the respondent is;
Where neither the applicant nor the respondent is entitled.
An occupation order may be applied for with or in the absence of family proceedings.
Depending on the entitlement of the parties there are two types of occupation orders known as declaratory and regulatory. Declaratory orders declare, extend or create rights and could be a necessary condition for the grant of a regulatory order where the respondent is already entitled but the applicant is not. They could not be granted where neither party is entitled.
The latter orders regulate the occupation of the family home.
Non-molestation order is an order in form of injunction containing one or both conditions:
Provision prohibiting the respondent from molesting another person who is associated with the respondent
Provision prohibiting the respondent from molesting a relevant child.
The term molestation has remained undefined in the legal framework and has been guided through the case law. The general attitude provides that violence is a form of molestation but molestation can take place without threat or use of violence.
Court can make such an order on application by a person who is associated with the respondent irrespectively of the existence of family proceedings or on its own initiative.
Who can benefit from the orders?
Both types of orders can be made in relation to ‘associated persons’ and ‘relevant children’. For the purposes of these orders associated person has a very wide definition, designed to provide protection in almost any family or domestic living arrangements. Therefore, included within that meaning are current or former civil partners, spouses and cohabitants as those who are living as husband and wife but are not married. People who have had an intimate personal relationship which is or was of significant duration are also included, therefore covering those who do not live together.
Regarding ‘relevant child’, the meaning of the term covers the following situations:
Any child living, or who might reasonably be expected to live with, either party to the proceedings
A child involved in existing children proceedings
Any other child whose interest the court considers relevant
Again it could be seen that the definition is very broad in order to provide protection to everyone that could be affected.