Legal Protection
CIVIL REMEDIES
There are four Acts which provide legal protection for women under the civil jurisdiction;
- Family Law Act 1996.
- The Protection From Harassment Act 1997.
- Crime and Disorder Act 1998.
- Domestic Violence, Crime and Victims Act 2004.
FAMILY LAW ACT 1996.
Under the civil system you can gain some protection against your abusive partner by applying for a civil injunction or protection order under the Family Law Act 1996. An injunction is a court order which forbids or orders a person to do certain things. Injunctions provide personal protection from domestic abuse and regulate the occupation of the family home
There are two types of injunctions available;
1. A non – molestation order.
2. An occupation order.
1) Non Molestation Order.
A non-molestation order is an injunction aimed at preventing your partner or ex-partner from causing or threatening violence to you or from molesting you or your child. Under the law molestation includes intimidation, pestering, threats and harassment.
An order is granted to ensure the health, safety and well being of yourself and your children and you must prove that there is a genuine need for protection.
A non-molestation order can be made for a specified period or until a further order is introduced or the order may be varied or revoked. There is no limit on the length of time that non-molestation orders can be extended.
2) Occupation Order.
An occupation order regulates who is allowed to occupy your home, and can direct a person to leave your home. If you do not feel safe to continue to live with your partner, or you have left home because of violence but wish to return and exclude the abuser from occupying the residence, you may want to apply for an occupation order.
The Court can order the following;
- The abuser to move out of the home or part of it.
- The abuser to stay away from the home or keep a certain distance away from the home.
- Regulation of the occupation of the home.
- The abuser pay the mortgage or rent.
Eligibility and the type of order depend on whether you have a legal right to occupy the property. If you are a sole or joint tenant, or owner or co-owner of your home, or you are married to someone who is, then you have a legal right to occupy and you can apply for an occupation order. If you do not have an existing legal right to occupy the home, then you can only apply for an occupation order if you are or have been married to the other person, or are a cohabitant or ex-cohabitant.
When considering whether an order is granted the court will consider the housing needs and financial resources of both parties, the likely effect on the health, safety and well being of both parties and their behaviour towards each other. They will apply a ‘balance of harm test’ which is a test to determine whether you or your child are likely to suffer significant harm from the abuser if the order is not made.
There are time limits in regards to occupation orders dependent on your eligibility;
- Where you have legal right to occupy – no limit.
- Where you have no legal right to occupy – 6 months with one possible further extension of 6 months.
Who is eligible to apply for an injunction'
In order for you to apply for a non-molestation or occupation order you must be an ‘associated person’. This means that you must be associated with each other in one of the following ways:
- You are or have been married to each other.
- You are or have been in a civil partnership with each other.
- You are cohabitants or former cohabitants (includes same sex couples).
- Although not cohabiting, you are in an "intimate relationship of significant duration".
- You live or have lived in the same household other than by reason of being the other's employee, tenant, lodger or boarder.
- You are relatives (e.g. parents, grandparents, in-laws, brothers, sisters).
- You have formally agreed to marry each other (even if the agreement has now ended).
- You have a child together.
- You are parties to the same family proceedings (e.g. child contact or divorce).
The consequences of breaching a non molestation order or occupation order.
Undertaking
To avoid an injunction, including an occupation order, the court may suggest that your ex partner offers to give an undertaking i.e. a promise to the Court on the similar terms to the proposed order, such as not to harass or threaten you or not to go within a certain distance of the home, but it is not an admission of guilt. The court should never accept an undertaking where it appears that your ex partner has used or threatened violence against you unless they are satisfied that under all the circumstances that you will be adequately protected without one.
Power of arrest
Where the court makes a non molestation or an occupation order and it appears to the court your ex-partner has used or threatened physical violence against you or your child, then the court can attach a power of arrest to the injunction. This means that a copy of the order must be held on record at the police station (you or your solicitor should ensure that this happens) and the police can arrest your ex-partner, without a warrant, immediately if the order is broken. The police must reasonably suspect that the perpetrator breached some of the provisions in the order.
Under the Domestic Violence, Crime and Victims Act 2004 a breach of a non-molestation order is a criminal offence so a power of arrest does not need to be attached to this part of the order. However, the consequences of breaching an Occupation order will remain the same, so a separate ‘power of arrest’ will still need to be requested from the court.
Enforcement
Where there is no power of arrest attached to the occupation order, and the abuser is in breach of the order, you can apply for a warrant for the abuser’s arrest and they could then be committed for contempt of court.
The possible sentence for the breach of an order under the civil court is a maximum of 2 years imprisonment or a fine in civil contempt proceedings.
The Domestic Violence, Crime and Victims Act 2004 has strengthened the law in respect of non-molestation orders. Under the 2004 Act a breach of a non-molestation order is a criminal offence punishable by up to 5 years imprisonment. The Act means that a breach of any terms under the non molestation order will constitute a criminal offence and so the police can arrest him immediately if the order is broken, even without a specific criminal offence having been committed.
While a breach of a non-molestation order is now a criminal offence you should still be able to take your abuser back to the civil court for breaking the order, if you prefer this.
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