Domestic abuse?
OBTAINING PROTECTION FROM DOMESTIC ABUSE THROUGH THE COURTS
On this page
- How can the law protect me from domestic abuse?
- What is Domestic Abuse?
- Who is an Associated Person?
- What is a Non-Molestation Order?
- What is the difference between a With Notice and a Without Notice application?
- What is an Occupation Order?
- How do I apply for an Occupation Order or a Non-Molestation Order?
- What is likely to be in the terms of the Non Molestation Order?
- What are the likely terms of an Occupation Order?
- How is an order served on the respondent?
- What is a return date?
- What is an undertaking?
- How do I enforce an Occupation Order or a Non-Molestation Order?
- What is a fact finding hearing?
- Conatct me
How can the law protect me from domestic abuse?
If you are a victim of Domestic Abuse a court can made orders designed to protect you from further abuse. There are two main Orders which the Court can make. These are called Non-Molestation Order and Occupation Orders.
menuWhat is Domestic Abuse?
The definition of domestic abuse is now contained in the Domestic Abuse Act 2021, ‘Abusive behaviour’ is defined in the act as any of the following (this list is not exhaustive):
- physical or sexual abuse
- violent or threatening behaviour
- controlling or coercive behaviour
- economic abuse
- psychological, emotional or other abuse
For the definition to apply, both parties must be aged 16 or over and ‘personally connected’ or what the law describes as ‘an associated person’
Who is an Associated Person?
When you apply for a Non-Molestation Order and/or an Occupation Order the Court will consider whether the parties are 'associated persons'. You may be an associated person if one of the following applies to you:
- I am married to or in a Civil Partnership with someone who is domestically abusive to me
- I am or have cohabited with someone who has been domestically abusive to me
- I used to be married to or in a Civil Partnership with someone who is domestically abusive to me
- I am or was engaged to someone within the last three years who has been domestically abusive to me
- I am related to someone who has been domestically abusive to me
- I am in family law proceedings and a party to those proceedings was domestically abusive to me
- I have been in an intimate relationship of a significant duration with someone who has been domestically abusive to me
- I have a child or children with someone who has been domestically abusive to me.
What is a Non-Molestation Order?
A Non-Molestation Order prevents the Respondent from using or threatening violence against you (and if applicable your child/children) or intimidating, harassing or pestering you. This is to ensure the health, safety and well-being of yourself (and if applicable your child/children).
A breach of a Non-Molestation Order is an arrestable offence and now carries a maximum sentence of 5 years imprisonment.
menuWhat is the difference between a With Notice and a Without Notice application?
If you want to make an application for a Non-Molestation, you should think carefully whether notice should be given to the abuser.
If you are in immediate danger an order can be made on the same day as the court receives your application or, depending on the court, the day after receiving your application, without the Respondent being there.
It is extremely difficult to obtain a without notice full occupation order. But if the court has sufficient information it may be persuaded to make an interim order. An example of such an order would be that each party only uses a particular part of the house so contact between the parties is limited.
menuWhat is an Occupation Order?
An Occupation Order controls who can live in a property. It can also restrict the Respondent from entering a certain area. If you do not feel safe living with the Respondent or you have left because of violence or intimidation and want to return without the Respondent being there, the order you would apply for is an Occupation Order.
menuHow do I apply for an Occupation Order or a Non-Molestation Order?
When formally instructed, Colette Chesters will assist you in completing an application to the court known as Form FL401 and will organise the taking of a witness statement on your behalf. Colette will also consider all documents in your possession and assist you in obtaining any further documentation you need to support your application from organisations like the police or your GP.
If you do not wish your address or phone number to be disclosed to the Respondent, a Form C8 will be completed on your behalf making it clear that your address is confidential. Your will then be assisted in submitting your application your nearest Family Court. The first hearing should then take place on the next working day. In matters of real urgency Colette Chesters will come with you to the court and seek a same day hearing. There is no court fee to be paid when making an application for a Non-Molestation or Occupation Order.
menuWhat is likely to be in the terms of the Non Molestation Order?
The following are standard terms usually found in a Non Molestation Order:
The Respondent must not:- Use /threaten any unlawful violence against you
- Enter or come within 100 metres of your address
- Communicate with you whether by letter, text message or other means of communication except through your solicitor
- Harass, pester or molest you
- Instruct or encourage any other person to do anything which is forbidden by the order.
There can also be other terms if your statement contains examples/threats of a similar nature. For example:
The Respondent must not: Use/threaten to use any unlawful violence towards any children- Damage/attempt to damage/threaten to damage any property belonging to you or jointly owned by you and the Respondent
- Damage/attempt to damage/threaten to damage any of the contents of the your home
- Enter or come within 100 metres of other addresses you are likely to be found (e.g. your place of work, your parents' address etc.).
What are the likely terms of an Occupation Order?
The Order, if granted, can do any of the following:- Prohibit the other party from returning to the property or entering the property at any time during the duration of the Order
- Allow you to return to the property to reside if you had already left, and prohibit the other party from residing there any further
- Specify that both parties continue to reside in the property but regulate which areas of the property they can both use
A power of arrest can be attached to an Occupation Order
menuHow is an order served on the respondent?
Personal service of an order is required. This means that you should arrange for a printed copy to be handed personally to the Respondent. The injunction will not be effective if there is no proof that the Respondent received it.
If you do not feel able to serve the Order yourself, Colette will assist you to instruct a process server. There is usually a charge for this service, however they can provide a certificate of service. It is vital that you are assisted in making arrangements for serving the Order as an injunction cannot be enforced unless the respondent knows about it.
A copy of the Order must also be delivered to your local police station. The form must be served together with a statement showing that the Respondent has been served with the order or otherwise informed of its terms. If the court makes an Occupation Order, you must serve a copy of this by first class post on the mortgagee or landlord of any relevant property.
menuWhat is a return date?
Whenever the court makes either a Non Molestation Order or an Occupation Order without notice (ex parte), the court should set what is known as a return date. Ex parte orders are only made temporarily until the next hearing, known as the return date.
This is a hearing where the Respondent has the opportunity to state if they agree with the order (or why the respondent says an order should not be made)). The Respondent will be present and will be able to speak to the Judge, either in person or using a representative.
At this hearing the court has the option to:- Continue the Orders that have been made and set a timescale for the Orders to be terminated
- Discharge the Orders
- Continue the Orders until a further hearing but request more evidence and/or further statements
- Accept an undertakings from the Respondent in place of the Order
What are undertakings?
The court sometimes suggests that, instead of an order the respondent should give undertakings (solemn promises) to the court with similar terms to that in the Order. This is supposed to have the same strength as a court order and breach of an undertaking constitutes contempt of court.
If the Respondent breaches an undertaking you would need to return to Court and apply for their committal for contempt of court.
menuHow do I enforce an Occupation Order or a Non-Molestation Order?
Breach of a Non-Molestation Order is an arrestable offence and the respondent could be found guilty of a criminal offence.
An Occupation Order may have a power of arrest attached to it. This would allow the police to arrest the respondent if there is reasonable cause to suspect that the Order has been breached. If you believe that a Non-Molestation or Occupation Order has been breached we would advise you to call the police.
Breaching a non molestation order now carries a maximum sentence of 5 years imprisonment.
menuWhat is a fact-finding hearing?
At the fact-finding hearing each party will sit in the witness box to tell the judge what happened. This is called giving oral evidence. Each party will be asked questions by the other party or their lawyer about the allegations. This is called cross examination.
The victim of alleged abuse can no longer be asked questions by an alleged abuser. If the respondent is not represented by their own lawyer the court will appoint a lawyer to conduct cross examination on behalf of the respondent.
The judge will listen to the evidence and may also ask some questions of their own. The judge will make a decision about each allegation. There is a great deal of preparation before a fact finding hearing such as the marshalling of supporting evidence, preparing court bundles and the preparation of a Scott Schedule. A Scott Schedule is a document which sets out each and every allegation of domestic abuse on which you require the court to make a findings. A ‘finding’ is when the court find the allegation to have happened (proved) or do not accept the matter is proved to the satisfaction of the court.
The good news is that very few cases in respect of domestic abuse reach the stage of a fact finding hearing. With good representation it is normally possible to resolve matters whilst still ensuring you have the protection you need to lead a happy, peaceful life, free from domestic abuse.
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