Sadly, domestic abuse affects one in four women in the UK. It is an incredibly sensitive and difficult topic. We have gathered together the seven most frequently asked questions to help you understand the law and protections available.
1) What is domestic abuse?
The government defines domestic abuse as ‘any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality.’ This definition has recently come to encompass non-physical abuse, which includes, but is not limited to, psychological, emotional and financial abuse.
Although the definition is not a legal definition, a draft ‘Domestic Abuse Bill’ was published on 21 January 2019, which proposed to strengthen the laws surrounding domestic abuse and to make the definition of domestic abuse statutory.
Both men and women can be abused or be the abusers. In half of all cases, the abuse continues even after the relationship has ended. This is especially common in cases where there are children from the former relationship; abusers often use child contact handovers as an opportunity to abuse the other party. It is vital to note that exposing children to domestic abuse is a form of child abuse.
2) What should I do if I have been affected by domestic abuse?
If you or your children are in immediate danger, get help and contact the police urgently. They will attend the scene to protect you. Only stay at the family home if you believe it is safe to do so. If not, stay with relatives or friends, or obtain rental accommodation. If this is not feasible, refuges are available for domestic abuse sufferers and the local authority has a duty to provide emergency accommodation.
It is important to talk to someone. Whether it is a family member or friend, medical professional or charity, they will be able to offer you support. Women can call the ‘National Domestic Violence Helpline’ and men can call the ‘Men’s Advice Line’ or ‘Mankind’ for advice from trained workers.
Clarion’s Family Law Team can help you obtain protection in the Family Court by applying for an occupation order or a non-molestation order (or both) to protect you and any children from future abuse.
Alternatively, if you believe that you could be the abuser, ‘Respect’ is a tailored helpline for perpetrators that refers you to courses and programmes in your area to help you address your conduct.
3) What is a non-molestation order?
A non-molestation order is a type of injunction obtained in the Family Court to protect you from further abuse. The court considers a range of factors when deciding whether to grant a non-molestation order, including: your circumstances, your well-being, and the involvement of any children. When preparing the application, we would work with you closely to draft a witness statement to accompany the application, clearly detailing how the abuse has affected your wellbeing and safety. The application can be made ‘without notice’ to the perpetrator, if there is a significant risk that they could stop you from applying, or abuse you further.
If the court grants a non-molestation order, it can determine the length of the order. It is usual for non-molestation orders to be granted for either 6 months or a year. The court has discretion for the contents of the non-molestation order, but they have the power to prohibit the perpetrator from being violent or intimidating towards you and stop them from contacting you by any forms of social media, email or telephone.
4) What is an occupation order?
Similar to a non-molestation order, an occupation order is also a form of injunction, but this deals specifically with the family home. If an occupation order is granted, the court can order the perpetrator to do any of the following: leave the property, remain a certain distance away from the property, stay in certain areas of the property at certain times, and continue to pay the mortgage and bills. It can also be applied for ‘without notice’ if there is a risk the perpetrator could deliberately go against the occupation order, abuse you further, or stop you making the application. The court can ultimately order both a non-molestation order and an occupation order, if they deem it appropriate.
When applying for an occupation order, we can assist in preparing an accompanying witness statement, to detail the history of the abuse and the reasons why an occupation order is necessary. It is important to note that you do not have to be living at the property when you make an application.
The court considers a range of factors including: the housing needs of yourself, your children and the abuser, the financial resources of you both and the harm that could be suffered if the order is not granted.
The length and contents of the occupation order depend on your legal entitlement to the property. We suggest that you seek legal advice as soon as reasonably practicable on this, as your marital status and whether or not you are named on the tenancy agreement or title deeds are all factors that the court considers strongly.
5) Do I have to go into the courtroom?
Yes, on at least one occasion, but the protections available to you reduce how daunting the experience is. If a non-molestation order or an occupation order is applied for ‘without notice’, due to the urgency of the matter, the court considers the application with you present but without the perpetrator. If the order is granted ‘without notice’, a further hearing is organised to allow the perpetrator an opportunity to explain their position. It will be necessary for you to attend this hearing and potentially give evidence. The court then decides if the order granted ‘without notice’ is to be continued.
Rest assured, the courts deal with domestic abuse matters very sensitively and our Family Team at Clarion regularly works with the court to ensure that ‘special measures’ are put in place for our clients to be sure they feel as comfortable as possible during proceedings. This can include an application for use of the vulnerable witness entrance and waiting room, to make sure that you do not come into any direct contact with the perpetrator. We can also arrange for regular breaks and screens in the courtroom, so that you do not have to see the abuser.
6) What evidence should I gather?
The courts place significant weight on evidence from professionals such as reports from the police, social services and medical staff. This can also be attached to the witness statement when applying for a non-molestation order or occupation order.
If you have not contacted the police in relation to your domestic abuse, or sought medical help, do not worry, as there are other ways of obtaining evidence. If the abuse is physical, take photographs of any injuries or broken household items, for example. In addition, if you are subject to harassment or verbal abuse, keep copies of any abusive voicemails, social media posts or messages. A diary to log all incidents is also incredibly useful to pinpoint dates. Although we understand that keeping a diary is often difficult, the court requires accurate information, so dates of incidents are vital to strengthen the evidence. As your safety is paramount, you must ensure that any evidence you collect remains out of sight of the abuser.
7) Do I qualify for legal aid?
The application for a non-molestation order or occupation order is free. However, instructing legal representatives will come at a cost.
Legal aid is only available where you can show that you cannot afford legal costs and that there is a serious problem. To meet this criterion, evidence of the abuse is required, for example: from the police, social services, a refuge manager, a doctor or domestic violence support service. In addition, you must meet the means and merits test. In establishing whether the financial criteria are met, you will be required to detail your income, benefits, savings and property ownership. Therefore, the availability of legal aid is limited. Although, we do not offer legal aid services, we would be happy to discuss estimated costs with you in relation to making an application.
Please talk to a member of our Family Team if you would like to discuss anything raised in this blog relating to domestic abuse or any other matter touched on here.
Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.