How is Domestic Abuse Defined by Law?
The Domestic Abuse Act 2021 confirms that domestic abuse is behaviour which can involve the following:-
- Physical or sexual abuse
- Violent or threatening behaviour
- Controlling and coercive behaviour
- Economic abuse (using or maintaining money or obtaining goods/services)
- Psychological, emotional or other abuse
The law also states that it does not matter whether the behaviour above has happened over one single event or over the course of the relationship.
Non-Molestation Orders – what are they and how can they protect me?
A Non-Molestation Order is an Order made by the Court which will prevent the perpetrator, or a third party instructed by them, from doing any of the following:-
- Using or threatening to use unlawful violence against you
- Coming within 100 metres of your property
- Communicating with you in any way, whether by letter, text message, social media, telephone or email or any other forms of communication except through solicitors (if instructed)
- Post on social media any information or details relating to the proceedings
- Post any comments on social media in respect of yourself which may cause offence to you
- Damage or threaten to damage any property which you own
- Encourage a third party to carry out any of the above on their behalf
When a Non-Molestation Order is made, it is a criminal offence should the perpetrator breach any of the above conditions and the police should be informed immediately. Non-Molestation Orders are time limited and are usually made for 12 months, however, they can be extended if required.
A Non-Molestation Order will also protect any minor children to the relationship.
How to obtain Non-Molestation Orders
A Non-Molestation Order is made by the Court following an application made by the individual who has suffered from domestic abuse. The application can be made on an ‘ex parte basis’ which means that when the application is filed by the Court the perpetrator of domestic abuse will not be made aware of the application until a Non-Molestation Order is made. This gives those who are applying for such Orders added protection and peace of mind. However, ex parte applications do require the approval of the Court.
There is no Court fee for issuing such applications and you may be eligible for Legal Aid pending a financial means and merits assessment for your representation at Court. The Legal Aid Agency has recently announced that it will be looking into how Legal Aid is granted for Non-Molestation Orders to make it easier for those who have higher incomes/assets to obtain such funding.
Legal advice is advisable should you wish to make an application to the Court.
Who can Apply?
To apply for a Non-Molestation Order, you must have been in a relationship with the perpetrator or be a relative to the perpetrator.
Occupation Orders – what are they and how can they protect me?
The general aim of an Occupation Order is to regulate the occupation of the family home. They can be used to exclude someone from the family home, as well as the following:-
- Enforce the right to remain in occupation of the property,
- Require permission to enter and remain in the property,
- Regulate the occupation of the property,
- Prohibit, suspend or restrict the exercise of occupation in the property,
- Require the departure from the property,
- Exclude from a defined area in which the property is located
Generally, Occupation Orders last for a period of 6 months, but can be extended for a further 6 months upon a further application.
How to obtain Occupation Orders
Much like a Non-Molestation Order, an application will need to be made to the Court. Upon receiving the application the Court will consider the ‘balance of harm test’. This means the Court has a duty to balance the harm caused to the individual making the application and any children if the Order was or wasn’t made. The welfare of any children will be the Court’s paramount consideration within any decision that it makes.
There is also a checklist that the Court may consider when determining whether or not to make the Order. These include the following:
- The housing needs and resources of each of the parties and of any relevant children;
- The financial resources of each of the parties;
- The likely effect of any order, or of any decision by the court not to exercise its power on the health, safety or well-being of the parties and of any relevant children;
- The conduct of the parties in relation to each other and otherwise.
An Occupation Order isn’t an Order which is made regularly due to the very nature of it, and given that there is a high test to be met as referred to above in terms of one being granted by the Court.
Our recommendations
We would always advise that legal help is sought when deciding to make an application to the Court. If you or anyone you know requires advice on the above, please contact Skyler Broadhead, Senior Paralegal, who would be happy to help. Skyler has a passion for helping women and men who require such protective Orders.
Disclaimer: This blog is for information only and does not constitute legal advice. If you need legal advice please contact us on 03456 465 465 or email enquiries@rotherabray.co.uk to get tailored advice specific to your circumstances from our qualified lawyers
