Wrongly accused of domestic violence
FALSE ALLEGATIONS
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Wrongly Accused of Domestic Violence
Sadly, during the breakdown of a relationship it is sometimes the case that a spouse makes false allegations against the other. This can be for a variety of reasons: to gain a perceived advantage in a child contact dispute or a dispute in relation to financial matters or sometimes simply out of spite and a desire for revenge.
If you are accused of domestic violence it is important to bear in mind that any allegations will be subject to scrutiny by the court and no judge will simply accept what your ex says without analyzing in detail her allegations.
menuFirst Hearing
If your spouse claims that she/he urgently needs a non molestation order, the court may grant her a temporary order on a 'without notice' basis. This means that you will have not received any notification of the spouse´s court application before the court grants the order. However, you will be given the opportunity to attend a court hearing within (usually) seven days of the order being granted and there ask the court to dismiss the order.
menuNon molestation orders
It is essential that you are represented at this first hearing. Solicitors appear to make ´without notice´ application as a matter of course. Often it can be successfully argued that the court should not have granted a ´without notice´ order and that there was no proper reason not to have given you notice. If the court accepts this the order is immediately dismissed and the accusing party will have to start the application process again, often they do not bother as matters can be sorted out at court. Many of those wrongly accused do not see the importance of representation at the very first hearing and the opportunity to ´get rid´of the injunction is lost for good and the process set out below is automatically rolled out.
menuOccupation orders
There are even cases where some courts grant ´without notice´ occupation orders. In law this should never happen and if you are faced with this situation an emergency application should be made to the court where you will receive a hearing before a Judge on the same or very next day.
menuPreparing for the first hearing
Courts can be unpredictable things so it is necessary to be fully prepared for the first hearing in case the court will not immediately dismiss the order/orders granted in favour of your spouse. To do this properly you need a lawyer who specializes in domestic abuse law and has experience of dealing with these types of cases. They will be able to advise you on your options.
If your spouse has applied for a non-molestation order, they will have to provide a detailed statement setting out the allegations. You and your lawyer will review your spouse's statement and discuss this. Your lawyer will then be able to prepare a statement in response setting out your version of events. This is an important document as it will be reviewed by the judge before you and your ex attend court. This is not an opportunity to detail every argument and disagreement during your relationship – rather, the purpose of the statement is to refute the allegations made by your ex.
Once the statement has been prepared, this will be sent to the court and a copy will also be sent to the solicitor of your spouse. If the court will not immediately dismiss the order you have two options. First, you can agree to provide undertakings stating that you will not threaten, harass, intimidate or pester your ex (or other such wording as appropriate). The wording of such undertakings would mirror the wording in a non-molestation order. An undertaking is a legally binding promise to the court and, if you breach the undertakings, you will be in contempt of court and there could be serious consequences.
You may well ask why you should do this if you are not guilty of domestic abuse. Crucially, the undertakings are provided on the basis that there is no admission by you that your ex's allegations are true. The purpose of providing the undertaking is to avoid the stress and expense of a court hearing at which both you and your ex will have to give evidence and will be cross-examined by barristers about the alleged domestic abuse. It is, in reality, a compromise solution. As there are no admissions, the court has not found them to be true and your ex cannot rely on them in any other court proceedings. In particular a good lawyer will require the court to specify that such undertakings may not be even referred to in any subsequent proceedings relating to the children of the family. However, if undertakings are not an appropriate way forward and you want to completely defend the allegations the matter will proceed to a ´fact finding´ hearing.
menuThe fact-finding hearing
A fact-finding hearing is what most people would call a trial. This would require you and your ex to attend court. The judge will consider your written statements and listen to the oral evidence you provided in court. You both would be cross-examined by and then ´final submissions´ would be made on your behalf persuading the Judge to accept your version of events. He or she will then decide whether some or all of the allegation are true or false. This is of course a more "high-risk" strategy than providing undertakings.
Even if you know the allegations are false, there are unfortunate occasions when a judge does not agree with you. The decision of a judge can often be a decision with which you lawyer did not expect or does not agree. You are then left with a ruling that you have committed domestic violence or abuse which could have a negative impact on any dispute regarding your children or in more extreme cases, on financial issues arising from your separation.
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