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Domestic Abuse and the Law

Recent figures published by the Office for National Statistics have revealed that the number of domestic abuse related crimes rose by 6% in the year ending March 2021, however, the figure of charges for domestic Read more...

Raphaela Kohs

Solicitor

  • Divorce
  • Financial remedies
  • Children Act cases

Recent figures published by the Office for National Statistics have revealed that the number of domestic abuse related crimes rose by 6% in the year ending March 2021, however, the figure of charges for domestic abuse by the Crown Prosecution Service has continued to decline for the third year in a row.

In November Nicole Jacobs, the Domestic Abuse Commissioner, stated that “[d]uring the national lockdowns, we heard of huge demand for support for domestic abuse services across England and Wales, and of helplines being sometimes overwhelmed with calls. The increase in police recorded crime is a small reflection of the difficulties and dangers faced by victims of domestic abuse during this time, as well as the increased awareness of domestic abuse amongst the public.”

However, there are a number of legal mechanisms in place which enable victims of domestic abuse to take their perpetrators to the family court, which can significantly assist in preventing further abusive behaviour.

What is Domestic Abuse?

On 29 April 2021, the Domestic Abuse Act 2021 received Royal Assent. The Act act has made amendments to the law including the definition of abuse, cross-examination of survivors of abuse and orders that may be made by the court.

The definition of domestic abuse under the Act is set in two parts. For the purposes of the Act, behaviour or incidents can be defined as domestic abuse is if:

  • Both parties are aged 16 or over and personally connected to each other; and
  • The behaviour is abusive.

Abusive behaviour consists of any of the following:

  • Physical or sexual abuse
  • Controlling or coercive behaviour
  • Economic abuse
  • Psychological abuse
  • Emotional abuse
  • Violent or threatening behaviour

How to Protect Yourself from Domestic Abuse

The first port of call if you find yourself in danger and/or have experienced domestic abuse is to inform the police. The police can issue a domestic violence protection notice or domestic violence protection order.

The family court also has the power to grant protective injunctions preventing certain behaviour such as a non-molestation order or occupation order.

These orders can be made to last for several months or longer. In most circumstances, orders are made for periods of 6-12 months. If the person subject to the non-molestation order breaches it, they will have committed a criminal offence punishable with up to five years’ imprisonment.

Who can Apply for a Non-Molestation or Occupation Order?

You can seek a non-molestation or occupation order against an ‘associated person’. An associated person may not always be a husband or wife, it could be a partner, relative, friend or someone who lives in your house.

What is a Non-Molestation Order?

A non-molestation order is used to prohibit someone from molesting another person who is associated with the other or a relevant child.

Various forms of behaviour can be classified as molestation including physical, sexual, or psychological abuse. Examples of direct molestation can include:

  • Physical harm
  • Verbal abuse or threats by telephone, email and/or post
  • Harassment

Molestation can also be committed indirectly, for example:

  • In writing or via social media
  • Through a third party
  • Intimidation
  • Recording the other person

Molesting can also include pushing, punching, slapping, hair pulling, throwing objects and spitting.

For an application to be successful there must be evidence of the following:

  1. The behaviour complained of;
  2. That the applicant or a child are in need of protection; and
  3. That an order is needed to control the behaviour of the respondent.

What is an Occupation Order?

An occupation order can give you the right to remain in a home, and can order another person to be excluded from the home or regulate the use of the home. An occupation order can also order a person to meet certain obligations for a home, such as paying the rent or mortgage.

An occupation order is often used to exclude a husband or wife from their home where there have been incidents of domestic violence against the other spouse. Non-molestation and occupation orders are often made together.

The court will review the following criteria before determining whether to make an occupation order:

  • If the parties associated persons;
  • If the parties have legal rights to occupy the home;
  • The status of the parties’ relationship;
  • The financial resources of each of the parties;
  • Housing needs and resources of the parties;
  • The effect of any order made; and
  • The conduct of the parties

The court will then apply a balance of harm test to ascertain if the applicant or a child is likely to suffer a significant harm if the order is not made, and that the harm is as great or greater than the harm attributable to the conduct of the respondent if the order is not made.

A power of arrest can only be attached to an occupation order.

What if I Live Overseas?

If you are a British expatriate living overseas, you may still be able to obtain non-molestation and occupation orders through the courts of England and Wales. However, the EU Protection Measures Regulation – which provided that domestic protection orders made in any EU member state are automatically recognised and directly enforceable across the EU – is no longer applicable to the UK post-Brexit.

The UK has provided for the above recognition to be national law following Brexit; however, the EU has not reciprocated. This means that if you have a European protection order this will be recognised in the UK but if you have a UK protection order you might need to initiate new proceedings in a European Country to ensure ongoing protection.

If you have any immediate concerns for the safety of yourself or you children and think you might be experiencing domestic abuse, call the police. However, if you have any questions on any of the legal matters relating to non-molestation and occupation orders, please feel free to reach out to one of our experienced family solicitors.

If you would like to discuss any of the topics raised in the above article, please call us on +44 (0)20 7936 8888, email on enquiries@lawstep.co.uk or contact a member of the team below.