Domestic Abuse

If you are the victim of abuse within a relationship then not only can the criminal justice system offer you protection, the civil courts can too.

There are two different court orders which can be made to protect you from further violence or abuse.

Unlike the criminal system they are not designed to punish the Perpetrator for previous incidents of abuse but to protect you from abuse or violence in the future.

Non-molestation orders:

• Are made to prevent further incidents of physical violence, threats, intimidation and harassment.

• Can be sought against a person with whom you are associated, and since 1st July 2007 this also includes "people with whom you have or have had an intimate personal relationship which is or was of significant duration".

This definition has deliberately been made as inclusive as possible to give the protection to as many people as possible.

However the relationship need not be of an intimate nature as other relatives are included as "associated people". If you are in any doubt check with a Solicitor.

Since 1st July 2007, specific details are to be included in the court order so that it is clear to all parties what actions may constitute harassment or intimidation, for example sending unsolicited text messages.

It is a breach of these orders not only if the Perpetrator takes action but also if he or she incites someone else to harm you. Breach of these orders is now a criminal offence punishable with up to five years imprisonment.

Occupation orders:

• can exclude the Perpetrator from a particular address;

• can remove the Perpetrator from a particular address to allow you to return;

• can prevent the Perpetrator from coming within a certain distance of the address.

Breaches of occupation orders are dealt with by the Civil Court and are not a criminal offence.

If, when he or she hears the application, the Judge agrees that the Perpetrator has used or threatened violence against you then the Judge has to grant a "power of arrest" along side the occupation order.

Once the documentation has been given to the Perpetrator, a copy is forwarded to the police so that if a breach occurs you can call upon the police to operate the power of arrest.

If the Perpetrator is found to be in breach of the order he or she can be arrested and brought before the civil court which can punish the breach by way of further restrictions, fines or terms of imprisonment.

You can ask the court to make an occupation order if you have shared a property with the Perpetrator of the violence or abuse as a spouse, former spouse, cohabite or civil partner.

In deciding whether or not to make an occupation order the Judge has to consider amongst other things:

• whether the harm which you or any child is likely to suffer if an order is not made is greater than the harm which the Perpetrator or any child is likely to suffer if the order is made (the balance of harm test);

• the housing needs and financial resources of both parties.

Undertakings

Once your application for either a non-molestation or occupation order has been made the Perpetrator can offer to give an undertaking rather than an order being made against him or her.

The difference between an undertaking and the court order is that breach of the undertaking is not a criminal offence, nor can a power of arrest be attached to it.

If it is breached then the Perpetrator can be returned to the Court and punished but he or she cannot be arrested.

The Judge will be unable to accept the Perpetrator's undertaking where an application for a non-molestation order is made, if the Perpetrator has used or threatened violence towards you and the Judge finds that an order is necessary so that if a breach occurs the Perpetrator can be found guilty of a criminal offence.

If you are uncertain as to whether the abuse which you have suffered warrants a court application, or if you are concerned that making an application may make matters worse rather than better, then your Solicitor can be instructed to write to the Perpetrator to warn them about their behaviour.

For a consultation with a Family Law Solicitor call us on 01823 256 494.