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Domestic Violence

 

 
 

 

 

The type of orders that can be available in a domestic violence situation are:

  • a) Non-molestation Order for the protection of parties and any children. These can be applied for by a wide range of associated persons.
  • b) Occupation Orders which exclude the other party from occupation of the home. They can extend to excluding that party from a specified area around the home if necessary. Occupation Orders can be applied for by spouses and cohabitants. Other associated persons can apply only in specific circumstances.

 

Non-molestation Orders

The Court can grant an Order prohibiting the Respondent from molesting the Applicant or the child. Under the previous laws the word molestation covers not only violence but threats of violence but also pestering. Such an Order could be granted against the respondent who sends abusive letters to his wife or persistently telephones his former partner in the middle of the night.

 

Factors that the Courts must consider.

The Court must have regard to all the circumstances including the need to secure the health, common safety and the wellbeing of the Applicant and any child. If the Applicant can show a genuine need for protection a Non-molestation Order can be granted for specified periods or until further Order.

 

Occupation Orders

An application for an Occupation Order can be made in the course of other family proceedings, or the Applicant can make a freestanding application under the Family Law Act. Whether or not this Order will be granted will be determined by:

  • a) whether the proposed Applicant can apply for the Order.
  • b) the provisions of any Order granted.
  • c) the factors that the Court will take into account in deciding whether to grant any Order.
  • d) the duration of any occupation Order.

The Applicant will be successful if applying for an Occupation Order if she is entitled to occupy by virtue of a beneficial estate, interest or contract or statutory entitlement. The home in question therefore must have been or must have been the home of the Applicant and the person with whom she is associated with (the Respondent). An Applicant can apply for an Occupation Order which may require the Respondent to permit the Applicant to enter and remain in the house, regulate the occupation of the home by either or both the parties, prohibit, suspend or restrict the Respondent’s exercise of his rights to occupy the home, require the Respondent to leave the home or exclude the Respondent from a defined area in which the home is situated.

 

Where the Applicant has matrimonial home rights and the Respondent is the other spouse, the Occupation Order may further provide that those rights may not be brought to an end by the death of the other spouse or dissolution of the marriage. Unless such a provision is included in the Order, it will cease to have effect on the death of either party or dissolution of the marriage.

 

Facts that the Courts must consider

In deciding whether to grant the Order sought, the Court must take into account all circumstances including:

  • a) the respective housing needs and housing resource of the parties and any child.
  • b) the respective financial resources of the parties.
  • c) the likely effect of any Order or any decision by the Court not to make an Order on the health, safety or wellbeing of the parties and any relevant child.
  • d) the conduct of the parties in relation to each otherwise.

When making an order the judge must also consider the “balance of harm” test. This provides that if it appears to the Court that the Applicant or any child is likely to suffer significant harm attributed to the conduct of the Respondent if any occupation Order is not made, then the Court shall make such Order unless it appears to the Court that:

  • a) the Respondent or any child is likely to suffer significant harm if the Order is made.
  • b) the harm likely to be suffered by the Respondent or child is greater as or greater than the harm attributable to the conduct of the Respondent which is likely to be suffered by the Applicant or child if the Order is not made.

An occupation Order can be made for a specific period until the occurrence of the specific event or until further Order.

 

Emergency applications

In urgent cases it may be possible to protect an Applicant or a child on the same day. Non-molestation and Non-occupation Orders can be made on an ex-parte basis where it is considered to be just and convenient to do so. In deciding whether an ex-parte application is made, the Court will consider the following factors:

  • a) the risk of any significant harm to the Applicant or child if the Order is not made immediately.
  • b) whether it is likely that the Applicant will be deterred or prevented from pursuing the application if the Order is not made immediately.
  • c) whether there is reason to believe that the Respondent is evading service and delay in effecting service will seriously prejudice the Applicant or the child.

The Courts are generally reluctant to grant Orders where the Respondent has not been given notice.

Ex-parte Application Orders will rarely be granted, especially where they would involve ousting the Respondent from his home.

Any Order obtained ex-parte will be temporary during the few days that the interim Order is in force, a hearing date for a return hearing and final hearing must be given to the Respondent.

 

Undertakings

The necessity of a full hearing can often be avoided by the Respondent offering to give undertakings, i.e. a promise to the Court on similar terms to the Order proposed. This avoid the Court Order being made against the Respondent. An Applicant may be prepared to accept an undertaking since it has been made voluntarily and is more likely to me complied with.

 

By Preeya Rampersad

 

 

 
 

 

 

To arrange a free consultation to discuss these proceedings call 0208 300 6666. Arrange a metting at one of our offices:

 

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