What Protection from Domestic Violence can you get from the Family Court?June 07, 2017
Recent figures show a 40% increase in the number of domestic violence victims withdrawing their support for criminal charges against their abuser. This summary has been produced by our expert family law solicitors as a guide to the protections available to victims of domestic violence through the family courts.
Who can obtain protective civil orders?
- Current, past or intended married couples or civil partners
- People who live or have lived in the same household in a familiar relationship
- People who have or have had a significant intimate relationship
- Parents or those who have parental responsibility for a child
The person who applies for a protective civil order is known as the Applicant and the person who is to be controlled by or subject to the order is known as the Respondent.
What orders can you get?
A Non-Molestation Order is an order to prevent a Respondent from doing a particular thing or exhibiting a particular behaviour towards the Applicant. Whilst the Non-Molestation order will need will be drafted specifically for each case, the sorts of behaviour it can prohibit include:
- Violence, Threats & Intimidation
- Pestering & Harassment
- Persistent abusive texts or phone calls
- Entering or attempting to enter a building (e.g. home, school or workplace)
- Entering a defined area (e.g. road, postcode, or within a radius of home)
Depending on the seriousness of the allegations, a Non-Molestation may be made without the Respondent knowing about it. This is done to protect the Applicant from any reaction that they fear the Respondent may have to receiving the application but will require that a court hearing be listed very quickly after the order is made to ensure the Respondent can answer the allegations made against them. If the Respondent denies the allegations the court will hear evidence and decide on the balance of probabilities whether it is more likely than not that the allegations are true. The balance of probabilities is a lower standard of evidence than the criminal ‘beyond all reasonable doubt’ and means that the Applicant needs to show it is more likely than not that the allegations are true for an order to be made.
A Non-Molestation order is only enforceable once it has been personally served on the Respondent. Such personal service is usually undertaken by a process server either handing the order to the Respondent or explaining to them that such an order has been made and the power of arrest which can be exercised against the Respondent if they breach the order. The breach of such an order is a criminal offence meaning the police can intervene to stop a breach whilst it is happening or arrest the Respondent after a breach has occurred. If the Crown Prosecution Service (CPS) chose not to prosecute for a breach of an order, then it can also be enforced by committal proceedings in the civil courts meaning the Applicant can apply for the Respondent to be sent to jail.
Non-Molestation Orders are generally made for either 6 or 12 months periods but they can be extended where necessary.
An Occupation Order will determine who can or cannot live in all or part of the family home or other property. It can order a party to leave a property and not return, or can allocate rooms in a property for exclusive use by one party or put in place a schedule for the use of the communal facilities.
When making an Occupation Order the court must balance the harm that would be caused to the applicant, the respondent and any children if the order is or is not made. It must also consider:
- The housing needs and resources of the parties
- The parties financial resources
- The likely effect of the court's decision on the health, safety and wellbeing of the parties and any children
- The conduct of behaviour of the parties
As with the Non-Molestation Order an Occupation Order is only enforceable once it has been personally served on the Respondent.
Whilst breach of an Occupation Order is NOT automatically a criminal offence, it is contempt of court and so can also be punishable by imprisonment thorough committal proceedings. The court can attach a power of arrest to the order if it feels it is necessary for the protection of the Applicant or child.
Occupation Orders are generally made for up to 6 months as they are designed to settle living arrangements while the parties agree where they will live and how they will divide the property in the long term.
How much will it cost?
Whilst we do not offer it, Public Funding is available for Non-Molestation applications in some circumstances but is subject to a means test. You can complete this online at http://www.civil-eligibility-c... but you may qualify for Legal Aid if you:
- Receive certain state benefits; or
- Have disposable capital/savings of less than £8,000; and
- Have a monthly disposable net income of £733 or less.
There are no court fees to make your application but it is important for both Applicants and Respondents to have legal advice, and ideally representation. Legal costs will vary depending on the complexity of the matter but are generally in the region of £2,000 to £5,000 excluding VAT.
How can we help?
If you are a victim of domestic violence or if have been accused of perpetrating domestic violence upon another person it is important you seek the right help so that you fully understand your options and next steps. Call our team of experienced family solicitors today on 0117 929 0451 or email.