INTRODUCTION
One of the areas in which cohabitees and married couples now enjoy equal protection is in respect of domestic violence. The Family Law Act 1996 has drawn together and improved upon a large number of jurisdictions by which the court could protect the victim of matrimonial violence.If you have been subjected to violence by your partner or spouse you can apply to the court for an injunction. Under the Family Law Act the court can make orders:
FORBIDDING FURTHER VIOLENCE
Molestation or harassment
EXCLUDING THE VIOLENT PARTY FROM THE HOUSE
Even if he or she is an owner or a tenant of it
ALLOW THE POLICE TO ARREST THE VIOLENT PARTY
For breach of the injunction and to produce that person to the court for punishment for breach of the injunction
MATRIMONIAL HOMES RIGHTS
The starting point of Part IV of the Act is that a married partner has matrimonial homes rights in respect of the matrimonial home whether or not he or she is entitled to occupy the home through being an owner or tenant.These rights stop that partner from being put out of the house without a court order. They are entitled to be served with any court application against the owner or tenant brought by a mortgage lender or a landlord and to attend on the hearing of any such application to have their say about why an order for possession should or should not be made. They are also entitled to apply to the court themselves for an order governing who is entitled to be in the house and on what terms. This is important where the owner/tenant has physically or mentally abused the non-owner.
The court can make an occupation order putting the owner and tenant out, if necessary allowing the non-owning party in and even preventing the owner/tenant form returning or coming within a specified radius of the property.
Non-molestation orders simply order the respondent to the application not to assault, molest, harass or interfere with the applicant.
APPLICATIONS WITHOUT NOTICE
In sufficiently serious cases either type of order can be made without the respondent being present and without him or her even knowing that the application has been made. This means that the victim can apply to the court and apply for the order without fear of having to endure the risk of further attack while the case comes to a hearing. However, the court will be slow to put the respondent out of his or her home without being given an opportunity to be heard unless there is a very real danger of serious harm in the time between the making of the application and the hearing of that application. It is still more usual to find a non-molestation order being made without notice and the hearing of an occupation application being heard when the respondent is actually present in court to be heard.Where the court is asked to make an order without the respondent being present it will almost certainly make an order which is temporary in nature and which will last only until the return date which is the date on which the court will order both parties to attend for further consideration of the matter and at which the respondent can make representations about the matters alleged by the applicant.
These types of proceedings are not necessarily complex but are important because the court will have to balance the questions of protection of the innocent party and any children against the property and other rights of the respondent who is accused of doing something wrong. The court will therefore need to be satisfied, on a balance of probability, that the respondent has been guilty of the attack or conduct alleged, that there is a risk of repetition and, in the case of an application for an occupation order, the harm likely to be suffered by the respondent or any child in the event of an order being made is not as great as, or no greater than, the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made.
Therefore, whilst the respondent can usually expect to lose his or her rights in respect of the home by his or her misbehaviour, it follows that in some cases, such as those where the respondent is the primary carer for the children, looks after the children in the home and has not mistreated the children themselves, he or she might expect to remain in the home leaving the abused partner to move out to protect himself or herself form further attack.
There is a wide range of matters to be considered in the case of matrimonial violence. A solicitor will be alive to most of them and can very quickly get to the bottom of whether it is a suitable case for an order. If you have been a victim to violence form your partner we recommend that you contact a solicitor. Refer to our links or to your local police who will have access to suitably qualified lawyers through the local Domestic Abuse Forum. Your local county court office of Citizens Advice Bureau may also be able to put you in touch with someone suitably qualified and experienced to help.
