Some of the hardest calls we get at OnlyMums and OnlyDads come under this heading of domestic violence (DV). Apart from offering some emergency signposting, we really wanted to spell out an answer to the question, “what is domestic violence?” We turned to Rayden Solicitors to offer us a legal overview.
We view this as an important post – and please, if you know of other specialist support organisations that can support victims (and perpetrators looking to change their behaviour) just add their details below. We will collate all information for our websites, so that better signposting is available to those who need.
Domestic Violence will affect at least one in four women and one in six men at some point in their lives, and at least 750,000 children a year witness domestic violence, but what exactly constitutes an act of domestic violence and what can be done about it, is not always clear.
Domestic Violence is currently defined by the Government as:
‘Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality’
This very wide definition almost deliberately means that an act of domestic violence is not just restricted to a physical violent act but can include financial and emotional abuse, as well as harassment and intimidation between partners and other family members.
Signs or examples of domestic violence that may not be as obvious as violent physical abuse include:
- Destructive criticism and verbal abuse
- Persistently putting you down in front of others
- Isolating you from others
- Controlling who you see and when you see them
- Harassment of various forms
- Threats using gestures or aggressive behaviour towards you or objects
- Sexual violence or degrading sexual treatment
- Pressure tactics
There is no exhaustive list for what constitutes domestic violence; people can feel threatened or in fear of their partners or family members in many different ways.
Is Domestic Violence a Crime?
There is no single criminal offence of “domestic violence”. Different incidents of domestic violence may constitute a number of different crimes, for example, assault, harassment, rape and criminal damage. Just because the crime is committed by a partner or family member makes it no less criminal than if a stranger committed it.
Protection in Civil Law: Protection under The Family Law Act 1996
Part IV of The Family Law Act 1996 offers civil protection for victims of domestic violence by imposing orders or injunctions (members of the public sometimes use the American terminology of “restraining order”). The victim can seek two types of court order:
- an order that the abuser does not “molest” them: a non-molestation order
- an order that the abuser stays away from the family home: an occupation order
Both orders are designed to protect the victim and any children; if these orders are breached they could carry a punishment of imprisonment.
As discussed above, a victim of domestic violence can seek an order from the court that the abuser does not “molest” them or any children involved, this is known as a ‘Non-Molestation Order’. The term ‘molestation’ covers a wide range of behaviours including physical violence, threats of physical violence and non-violent behaviour such as pestering, harassment and/or intimidation. Examples on non violent behaviour have in the past included repeated silent telephone calls, shouting obscenities in the street or sending naked photographs of your partner to humiliate them.
Non-Molestation Orders can only be applied for by what the law calls an ‘associated person’. A person is considered to be an associated person if:
- they are married or have been married to each other or are or have been civil partners
- they are cohabitants or former cohabitants (in a relationship and living together as a couple)
- they have lived or live in the same household
- they are related
- they have had an intimate relationship with each other of a significant length of time
- they have a child together
- they are parties to the same family proceedings.
This means that you can apply for an order against a relative as well as someone that you have or are in a relationship with.
Children also have a right to apply for a Non-Molestation Order but will need to get permission from the courts to apply if they are under 16. The courts will only give a child permission to seek such an order if they think the child has sufficient understanding.
If the courts decide to grant a Non-Molestation Order the perpetrator of the domestic violence is directed by the court not to harm, threaten, intimidate, harass or pester the applicant. The Order can relate to specific acts that the applicant wishes to prohibit or alternatively it can be a general order to stay away. There is no limit as to how long a Non-Molestation Order can run for.
It is now a criminal offence to breach a Non-Molestation Order without a reasonable excuse. This offers more protection for the victim and means that in cases where perhaps the victim is too fearful to speak out about a breach, the police can take it upon themselves to bring criminal proceedings. This can lead to imprisonment.
This is an order that can remove the alleged abuser from the family home, order them to leave, stop them from returning or can give the victim the right to enter or remain in the home. It can put an “exclusion zone” around specific areas for the protection of the victim. It can also include a provision that the abuser pay the mortgage/rent for a defined period of time.
There are much stricter rules in place about who can apply for an occupation order. A person can apply for an Occupation Order if they have a right live in the home eg they own or rent it or if they are married to or are living as a couple with the person who has the right to live there.
When deciding whether to grant an order the courts will consider all circumstances of the case including the housing needs of the parties and resources for any children, as well as the likely effect of the order or the decision not to make an order, on the health, safety or well-being of the parties and children involved. If the person applying for the order is entitled to apply because they have the right to live in the property the court will apply a ‘balance of harm’ test. If it appears the applicant or any children involved are likely to suffer significant harm if the order is not made, the court will make an order.
As the rules for who can and can’t apply and what an individual can apply for are relatively complicated, legal advice should be sought.
If the court considers it ‘just and convenient’ to do so, they can make the above orders on an emergency basis and without informing the respondent first. This is known as an ‘ex-parte’ order. This is usually appropriate where there has been a very recent and serious incident, there is no other protection in place (such as bail conditions) and there is a real risk of harm. This can be a fast and effective remedy for those in need of urgent protection from domestic violence. Such an order can be obtained the same or next day and legal aid may be available. A solicitor should be approached for assistance as soon as possible.
Protection from Harassment
The law also offers protection from harassment under the Protection from Harassment Act 1997. It is possible for victims of harassment to obtain an injunction. Harassment does not need to be physical and can be conduct such as persistent phone calls, repeated threats, bullying or stalking. If such conduct takes place on at least two occasions and the Defendant ought to have been aware then it amounts to harassment.
Domestic Violence takes many different forms and unfortunately it is a big problem in the UK. The courts do have safeguards in place to assist in the protection of victims, but in order to protect them victims of domestic violence must gain the confidence to speak out about the abuse they are suffering. Charities such as The National Centre for Domestic Violence, Refuge and Mankind are there to offer support and assistance to victims of domestic violence.
Theresa May this week announced a new scheme to enable individuals to find out if their partner has a history of domestic violence. This is known as Clare’s Law. The scheme is to be piloted in four areas of theUK: Greater Manchester, Nottinghamshire, Gwent and Wiltshire for 12 months starting this Summer. This should illicit confirmation of whether an individual has criminal convictions in respect of their treatment of a former partner including harassment and breach of non molestation and occupation orders.
Anyone who feels that they are experiencing domestic violence should see a qualified family solicitor as soon as possible so that, even if there are not ready to leave the relationship, or to take steps to protect themselves, they are aware of the options open to them and the protection available. Very often initial advice can be provided for free if they qualify for Legal Aid and the solicitor will be able to assess eligibility for funding under this scheme.
The police also have specially trained domestic violence teams who can assist victims of domestic violence. It is always advisable to report the domestic violence to the police as soon as possible and in conjunction with seeking advice from a solicitor.
Advice and assistance is also available from:
- Refuge: for women and children against domestic violence
24 hour freephone: 0808 2000247 (run in partnership with Womens Aid)
- Womens Aid: working to end domestic violence against women and children
- Men’s Advice Line: support for male victims of domestic violence
Telephone 0808 8010327
- Mankind: supporting male victims of abuse
Telephone 01823 334224