There are now three types of Court Order available in the Civil Courts that can help protect victims of domestic violence: a Non-Molestation Order, an Occupation Order and a Restraining Order.
This Order is available to help protect victims of domestic violence from abuse suffered by one of the following:
- Former spouse
- Cohabitant (to include same sex couples)
- Former cohabitant
- Family member (if live in the same household)
The term Molestation has a broad legal definition. Molestation can range from physical violence to harassment, and from bullying to mental cruelty. The victim’s application to the Court for a Non-Molestation Order must show that there is a genuine need for the Court’s protection. It is the solicitor’s job to detail this in the witness statement of the person suffering the Molestation.
It is usual for applications to be made to the Court without formal Notice being given. In other words applications are generally made without the perpetrator’s knowledge. The victim should take comfort in the fact that they are able to apply for this Order without their abuser being aware. It will strengthen the victim’s case if the police have been recently involved or there has been a history of domestic abuse in the relationship. It will also help the victim’s case for the grant of a Public Funding certificate (often known as Legal Aid). If Public Funding/Legal Aid is awarded it will enable the solicitor to carry out the required legal work on the victim’s behalf. Fear of legal fees should not therefore deter victims of domestic violence from seeking protection from the law.
The Family Department of Slee Blackwell Solicitors pride themselves on taking swift and decisive action when the circumstances arise.
Staff at our offices in Barnstaple, Bideford, South Molton, Braunton and Exeter will aim to bring an application for a Non-Molestation Order before the Court within 24 hours of receiving instructions from the victim. Once the Court has made the Non-Molestation Order, it does not come into existence until it has been personally served upon the perpetrator. Once the Order has been served, the local police department, and if appropriate the Women’s Aid group, are made aware that the Order is in place.
If the perpetrator was to breach a Non-Molestation Order it would amount to a criminal offence, punishable by a maximum of five years imprisonment.
There are various types of Occupation Order depending on the status of the applicant:
- If the victim already has an existing right to occupy the house in question (i.e. they are a joint legal owner) or has a matrimonial home right (a spouse whose beneficial right has been registered at the Land Registry) and if significant harm is shown to have occurred, there is a mandatory duty on the Court to make an Order.
- If the victim is a former spouse, they must show the house in question was intended for occupation and was the matrimonial home, and that the perpetrator is entitled to occupy the property.
- If the victim is a cohabitant or former cohabitant, they must show the house is or was intended to be the couple’s home. This can now include same sex couples. The Court does not however have the duty to make an Order even if harm is established.
Applications for an Occupation Order will generally be held ‘on Notice’ by the court i.e. the perpetrator will be aware that an application for an Occupation Order has been made and will have a clear two days notice of the hearing. The Court is very unlikely to grant an Occupation Order which affects the perpetrator’s own right of occupation, without making him aware of the application initially. If the abuse is significant and ongoing, our advice would be to seek alternative accommodation, secure a Non-molestation Order and pursue an Occupation Order through the Court. A power of arrest needs to be attached to an Occupation Order as security for the victim if it is breached.
Criminal courts for many years have had the power to implement Restraining Orders but only when the perpetrator has been convicted of two types of offence: harassment or putting someone in fear of violence. From 30 September 2009, a Restraining Order can be made following any offence, even where someone is acquitted, in order to protect the victim. Breaking the terms of a Restraining Order is a criminal offence, punishable by up to five years in prison. These new regulations are still in their infancy. It remains to be seen how the Restraining Order will work in practice. In the meantime victims of domestic violence can take comfort from the fact that Non-molestation Orders and Occupation Orders are tried and tested weapons in the battle against perpetrators of domestic abuse.
For further information about the Orders available to victims of domestic violence please contact Emily Hockin on FREEPHONE 0808 155 6389 or [email protected]. Slee Blackwell have offices throughout Devon in Barnstaple, Bideford, Braunton, Exeter and South Molton.