By Zehra Tamkan
According to statistics, there is approximately one call to the Police every minute for domestic violence complaint in the UK and many victims find themselves frequently harassed by the abuser.
If you are a victim of domestic violence, you can seek help by way of an application to the Court. These are called “injunctions”. Injunctions offer you the required protection.
What is domestic violence?
There is no legal description of domestic violence, however the Government describes it as:
“Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to the following types of abuse:
Psychological abuse
Physical abuse
Sexual abuse
Financial abuse
Emotional abuse
Controlling behaviour is: a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
Coercive behaviour is: an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.
This definition, which is not a legal definition, includes so-called ‘honour’ based violence, female genital mutilation (FGM) and forced marriage, and is clear that victims are not confined to one gender or ethnic group.”
The most common use of injunctions is in domestic violence cases between couples, whether married or unmarried. In these instances, a court can make a non-molestation order to protect a partner and if required any children. A court can also make occupation orders, and attach a power of arrest for any breaches of orders made.
What is a non-molestation order?
This is an order to stop the Respondent “molesting” you, the Applicant, or your children. Molesting means harassing, pestering or interfering with you or your children in some way, and also includes assault.
What is an occupation order?
These are orders which decide who should carry on living in the home in the short-term after there has been violence or harassment etc.
The orders can include the following:
1. Allow the Applicant to continue to stay in the family home;
2. Allow the Applicant back into the family home if the Respondent has already excluded the Applicant from the family home;
3. Exclude the Respondent partner from all or part of the family home;
4. Enforce a set of rules about living in the home;
5. State the Applicant and the Respondent partner must live in separate parts of the home;
6. Exclude the Respondent from coming within a certain distance of the family home;
7, Order the Respondent partner to leave the family home or part of it.
In essence, the court will look at all the circumstances of the case and make an order that is essential. In particular, the court will consider the following aspects:
. each person’s housing needs and resources,
. each person’s financial resources,
. the effect of any order or not making the order on the health, safety or well-being of the parties or any relevant child,
. the conduct of the parties.
In any case, the court needs to balance the harm you and any relevant child is likely to suffer if the order is not made against the respondent and any relevant child is likely to suffer if the order is made.
If you are not a registered owner of the property or you have not got any interest in the home, you can seek an order which allows you to remain in the property because you have “matrimonial rights”. You can also get an order that this right will not end if your partner dies or your partner divorce. However, your partner can apply to the court to try to end your “matrimonial” rights or restrict them.
Who can apply for an injunction?
So that you can apply for an injunction you must be an “associated person”. This means that you and the abuser must be associated with each other in one of the following ways:
You are/have been married to each other.
You are/have been in a civil partnership with each other.
You are/ have been cohabitants (this includes same-sex couples).
You live/have lived in the same household.
You are relatives.
You have formally agreed to marry each other (even if that is no longer the case).
You have a child together (either parents of the same child, or have parental responsibility for the same child).
You are not living together but have/have had an ‘intimate relationship of significant duration’.
You are both involved in the same family proceedings (for example divorce or child contact arrangements)
What is the procedure to apply for an injunction?
The application is made on a form, which is fairly lengthy, supported by a sworn statement (affidavit or affirmation) setting out the facts and the reasons for making the application.
Time is usually very tight in cases of harassment or domestic violence. Therefore in almost all cases, depending on the local court’s arrangements, the applicant will make an application first to the duty judge on the day the application is issued. This is a short hearing without notice to the respondent. In almost all cases this is necessary to get a hearing date fast (usually within a week or two) and sometimes this is necessary because there is a fear that as soon as the respondent hears about the application, they may become aggressive and this may cause them to harass the applicant even more or to become violent. The judge may then already make a non-molestation order to protect the applicant from harassment. The court does not often make an occupation order at this stage. The reason is that nobody has a right to harass someone else as such, however, may have a right to live in the family home.
If an order has been made without notice (or with notice and the respondent was not at court) the order must be served on the respondent.
There will always be a court hearing with notice to the respondent so that they can put their case forward to the court. The court can then decide whether to extend the orders made without notice, make other orders, or dismiss the applicant’s application, depending on the circumstances. Occasionally, there is not sufficient time to hear the evidence and if there is no agreement the matter will need to be adjourned for a longer hearing.
What if the injunction is ignored or not followed by the respondent?
If the respondent breaches the injunction, you will need to enforce the injunction. This means that you will be requesting the Court to take a further action. The procedure for enforcing the order differs, depending on whether you have a non-molestation order or an occupation order.
+44 (0) 203 909 8399
z.tamkan@connaughtlaw.com
Zehra works for a number of corporate immigration and family law clients. She advises on immigration matters including but not limited to applications under Tiers 1-5 of the Points Based System, EEA applications, domestic workers, students, family cases, including unmarried partner and marriage visas, settlement and applications for British citizenship.