Domestic abuse

Currently there is no statutory definition of domestic abuse, as our society’s understanding of what constitutes abuse has developed over time. It is not just physical violence which may leave marks on someone’s skin. It also includes sexual abuse, psychological abuse (including gaslighting), financial abuse or emotional abuse, as well as behaviour towards you which is intended to be controlling. Under plans for new legislation, it is proposed that there is one definition which will apply in the family and criminal courts. This would mean that “domestic abuse” is defined as follows:

Behaviour between two people over 16 who are personally connected (e.g. married or in a civil partnership, in a relationship, parents of a child etc.), which consists of any of the following:

• Physical or sexual abuse
• Violent or threatening behaviour
• Controlling or coercive behaviour
• Economic abuse
• Psychological, emotional or other abuse.

Economic abuse means any behaviour which has a substantive adverse effect on someone’s ability to:

• Acquire, use or maintain money or other property
• Obtain goods or services

A non-molestation order is an order under the Family Law Act 1996 which prohibits the respondent from molesting an associated person (a family member or ex-partner) or any relevant children. If you are the one seeking the order, then your ex-partner will be the respondent, and the order can protect you and your children.

A non-molestation order commonly states that a respondent must not:

• Use or threaten violence towards the applicant or any relevant children.
• Intimidate, harass or pester the applicant or any relevant children.
• Contact the applicant or any relevant children directly or indirectly.
• Damage, attempt to damage or threaten to damage the family home or any property belonging to the applicant.
• Instruct or encourage another person to take any of the above actions.

A non-molestation order can also include a zonal restriction. This means that the respondent is prohibited from attending or coming within a specified distance of the family home, the children’s schools or other property.

An occupation order is an order made under the Family Law Act 1996 which determines who should live in a property. Orders can also regulate who will live in each section of the home.

The order can exclude one party from the home or from a defined area within the home. That party may also be excluded from a defined area surrounding the property.

An order may also require one party to permit another party to enter the property or part of the property.

Breach of a non-molestation order is a criminal offence. If a person disobeys the terms of a non-molestation order the police may arrest them and the case will be dealt with by the criminal courts.

The current categories of people against whom you can obtain an injunction under the Family Law Act 1996 include the following:

• People who are or have been married or in a civil partnership with each other
• People who are or were living together in a cohabiting relationship
• Those who live or have lived in the same household but as more than a tenant or lodger
• Those who are related
• Those who agreed to marry or enter into a civil partnership
• Those who have had an intimate personal relationship of significant duration.

These days injunction hearings are usually arranged within 1 and 3 days’ notice to the other party. Notice can often be given by email or text.

It is possible to obtain an injunction without your ex-partner being told in advance if urgency is required and you are worried about your safety, but this is now very rare.  In making a decision as to whether the order should be made without notice to your ex-partner, the court will consider all the circumstances, including any risk of significant harm to you or your children.  The court will make a judgment as to whether an order should be made immediately, or whether a hearing should be arranged first in order that both you and your ex-partner can put forward your own sides to the story.  If an order is made ‘without notice’ to your ex-partner, a full hearing must be listed as soon as possible afterwards to give your ex-partner the opportunity to explain their position. 

It may be therefore that your ex-partner is told that you are seeking an injunction before the order is in place, and we can discuss with you how best to manage this if it arises.

If an order is made in your ex-partner’s absence, we are then required to formally serve it on him or her, as it is not effective until copies of the documents have been served.