Domestic violence is controlling, coercive or threatening behaviour, violence or abuse between people of any gender who are aged over 16. The abuse involved can be:
Measures designed to stop domestic violence are included in Part IV the Family Law Act 1996 (as amended by the Domestic Violence, Crime and Victims Act 2004).
If you are suffering domestic abuse at the hands of another you can apply for an injunction including:
- an occupation order
- a non-molestation order
An occupation order regulates who can live in the family home. An occupation order can also restrict your abuser from entering the area surrounding the family home. These are often used when someone does not feel safe continuing to live with their partner, or if they have left home because of violence, but want to return and exclude their abuser.
A non-molestation order aims to prevent a person’s partner or ex-partner from using or threatening violence against that person or their child, or intimidating, harassing or pestering them.
Who can apply for one of the above orders?
To apply for one of the above orders under the Family Law Act 1996 you must be an ‘associated person’. This means you and your partner or ex-partner must be related or have an association which each other in one of the following ways:
- you are or have been married to each other or in a civil partnership;
- you are cohabitants or former cohabitants;
- you live or have lived in the same household;
- you are relatives;
- you have formally agreed to marry each other – this still applies even if the agreement has now ended;
- you have a child together – this can include both those who are parents of the same child and those who have parental responsibility for the same child;
- you are both involved in the same family proceedings – for example divorce of child contact.
Changes brought about by the Domestic Violence, Crime and Victims Act 2004
Section 3 of the DVCVA amends the definition of cohabitants to include same-sex couples. This means same-sex cohabitants can now obtain an injunction on the grounds of being a cohabitant, rather than merely being part of the same household as the respondent.
Section 4 of the DVCVA introduces a new category of associated persons, namely those who have or have had an intimate personal relationship with each other which is or was of significant duration.
An intimate relationship is not necessarily a sexual one and ensures that both heterosexual and same-sex couples who do not live together and do not have children together but have been involved in a relationship for some time to apply for an injunctive order.
If you do not fall within the definition of an associated person for the purpose of the Family Law Act but you are being continually harassed, threatened, pestered or stalked after a relationship has ended, you can also apply for a civil injunction under the Protection from Harassment Act 1997.
Obtaining an injunction
If an individual is in immediate danger then an application can be made to the court on the same day without the need of the abuser being present. This form of application is called an ex parte or ‘without notice’ application.
For this to be granted the court, will have to be satisfied that the victim is at risk of significant harm and will be prevented or deterred from applying if they have to wait.
If an individual has been granted an ex parte notice they will have to return to court for a full hearing once the abuser has been served with the notice.
Injunctions are commonly for a specified period of time, for example 12 months. They can also be renewed or they can be made “until further notice”.
Extending the orders
There is no time limit on the length of time that a non-molestation order can be extended.
Occupation orders can only be extended beyond the initial 12-month period if that person has a legal right to stay in the home, for example, they are the owner or co-owner, tenant or joint tenant or because they are of have been married to the owner or tenant.
What happens if an order is breached?
A breach of an occupation order is usually a civil offence, but the court can attach a power of arrest to the order if it feels the respondent has or may have used violence or threatened to use violence towards an applicant. If a power of arrest is attached, the individual breaching the order can be arrested and face up to two years in jail or a large fine.
One of the most significant changes brought in by DVCVA is that breach of a non-molestation order without reasonable excuse becomes a criminal offence, punishable with a maximum of five years imprisonment.