DOMESTIC ABUSE AND COVID-19 ISOLATION: WHAT ARE YOUR OPTIONS?

The National Domestic Abuse Helpline has reported a rise of 25% in calls since the COVID-19 lockdown. The charity Refuge has stated that isolation appears to aggravate pre-existing aggressive behaviour.

If you find yourself in an abusive relationship, what are your options?

What is domestic abuse/violence?

Domestic abuse does not just include violent physical behaviour. It can encompass, but is not limited to, any incidents or pattern of incidents of:

• Controlling, coercive behaviour

• Threatening behaviour

• Violence or abuse be it psychological, physical, sexual, financial or emotional.

Guidance on what to do:

Gov.UK have released useful guidance of contacts that will be able to offer assistance and guidance during the COVID-19. This is available via this link:  https://www.gov.uk/government/publications/coronavirus-covid-19-and-domestic-abuse/coronavirus-covid-19-support-for-victims-of-domestic-abuse

If you are under immediate risk, it is crucial that you dial 999 for the police. If you are unable to speak, upon dialling 999, press 55 and police units will be sent to your location without the need for you to speak.

What we can do for you:

There are two main orders that we can apply for on your behalf:

• Non molestation order: an order in place to protect the victim of domestic violent and any children of the victim.

• Occupation order to exclude the abuser from the home. This can also be extended to an area around the home if necessary.

Who can apply for these orders?:

• If you are a spouse or a civil partner of the abuser

• If you are a cohabitants or former cohabitants or if you have lived in the same property

• If you are a relative of the abuser

• If you have agreed to marry the abuser/had an intimate personal relationship for a significant duration

• If they are a parent of your child or have parental responsibility of your child

• If you are parties in family proceedings.

Emergency Applications:

A solicitor is able to protect you urgently using a ‘without notice’ application. This enables either an occupation or non molestation order to be put in place that day or the following. These urgent applications are, understandably, only for circumstances where:

• There is significant risk of harm to you or your child if the application is not made instantly;

• Where there is reason to believe that you may not make the application at all where you are unable to make it instantly; or

• Where there is reason to believe that without the urgent application, your abuser may avoid service of the order and this evasion of service would adversely affect you or your child.

If one of these criteria are not clearly met, a without notice or ‘urgent’ application cannot be made.

A without notice order for non molestation, occupation or both, will contain an expiry date (usually within 14 days). Within this time, you will need to attend for a full hearing in relation to the application whereby your abuser will be able to attend.  Protection can be put in place for you so you do not come in to contact with your abuser. This hearing will consider the long term solutions needed to protect you.

It does ensure that in the most serious cases, you are protected as soon as possible. It is, however, encouraged where there is serious risk to your own or your child’s safety that the police are called.

Which order could you apply for?

Non molestation:

This order is designed to protect you and your children from the actions of your abuser including violence, threats of violence, pestering, visiting or contacting your place of work and so on. This contact can be direct (in person), through means of electronic communication, social media, or even post.

The courts aim with a non molestation order is to secure the health, safety and wellbeing of you and your children. To apply for a non molestation order you will need to demonstrate that your or your children’s health, safety and wellbeing is at risk without the order. If the court finds that you have a genuine need for protection, a non molestation order will likely be granted.

The non molestation order can be made indefinitely, for a specified period or until a further order is made. The duration of the non molestation order is at the discretion of the court and will depend on the individual facts of your case.

A non molestation order has an automatic power of arrest. If your abuser breaches its terms you can take action by either reporting them to the police or starting civil proceedings to request that the court choose the appropriate repercussion.

Occupation order:

Occupation orders are considerably more complex than non molestation orders and are, as a result, more difficult to achieve. However, if you are residing with the abuser and a non molestation will not mitigate the risk to you and your children, an occupation order is a viable option.

This order is designed to control a number of potential elements in respect of the family home. It may include one or more of the following:

• Exclude your abuser from the family home, even if they have the legal right to live there.

• Provide you with the right to return to the family home in the event that you have been removed by your partner or provide you with the right to remain in the family home for a specific period of time.

• Establish who is to financially maintain the family home irrespective of who is living there.

• If suitable, an occupation order can also be used to divide the family home so that you are able to reside in one part whilst your abuser resides in another.

Your status in relation to the family home will determine whether you are able to apply for and of the contents of an occupation order. The eligible statuses are as follows:

1)    Status One: You have an existing right to occupy the family home

To be eligible, you must have an existing right – by a legal interest in the property, statutory entitlement, contractual entitlement or beneficial interest – to occupy the family home. This property must also have been, or intended to have been, the home of you and your abuser.

Under Status One, you may ask the court to provide an order that:

• Provides you with sole occupation of the family home and excludes the abuser (either from entering the home entirely or an area of the home).

• If appropriate, divide the home into areas where you occupy at the exclusion of the abuser and vice versa.

• You can also request that the court enable these rights to continue after the death of your abuser or the dissolution of your marriage (if applicable).

The court must have consideration to all the following factors, including:

• Both parties housing needs, housing resources and the needs of any children and financial resources

• The effect of the order, or the effect of not having the order, on the health, safety and wellbeing of the parties and children 

• The conduct of the parties in relation to each other and otherwise

You must also show that you and your children are going to suffer greater harm without the order in place than your abuser and the children will with the order.

Under this status the order can be made for a specific period, until a specific event, or until further order. It is most likely, however, to be for a specific period such as 6 months.

2)    Status Two: You have no legal right to occupy the home but you are a former spouse or former civil partner of the abuser

To be eligible, you must be the former spouse or civil partner of your abuser and they have a right to occupy the home. The home must also have been or intended to have been the family home.

The occupation order can deal with the occupation of the home as specified in Status One. In considering your eligibility the court will consider the following:

• Both parties housing needs, housing resources and the needs of any children and financial resources

• The effect of the order, or the effect of not having the order, on the health, safety and wellbeing of the parties and children 

• The conduct of the parties in relation to each other and otherwise

• The length of time since you have lived together and since your marriage ended

• Any proceedings in relation to finances around children involved and also proceedings relating to the ownership of the property.

The duration of this particular type of order must be for a specific period and cannot exceed 6 months, although this can be extended. The order will cease upon the death of either parties.  

3)    Status Three: You have no right to occupy the home but you are a cohabitant or former cohabitant of the abuser

Under Status Three, you must be unrelated to but living with your abuser or have lived with them. Your abuser must be entitled to occupy the home, and the property must have been or intended to be the home of you and your abuser. The order itself can provide the same occupational control as Status One and Two.

In deciding whether to make an occupation order, the court will consider very similar factors as under Status Two:

• The housing needs and resources and financial of the parties and any children

• Likely effect of any order on the health, safety and wellbeing of any party involved

• The conduct of the parties involved

• The length of time since you have lived together and the duration of time since you lived together

• Whether you have any children together

• Any proceedings in relation to finances around children involved and also proceedings relating to the ownership of the property.

The duration of this particular order must be for a specific period no longer than 6 months. This can be extended only once and will cease upon the death of either party.

4)    Status Four: Neither you nor your abuser have a right to occupy the home

This will be used where you and your abuser have lived in a property but do not have any legal right to occupy – such as where you both live with your abusers parents. In considering whether to grant this order, the courts will consider the factors under Status Two if you and your abuser are or were married and Status Three where you are or were cohabitees. The duration of these will follow each status accordingly.

At Machins we have a highly experienced and friendly team of Solicitors who can guide you through the process. We are used to dealing with sensitive matters and everything you tell us is treated confidentially.

Please get in touch today.

Berkhamsted – 01442 872311 or email [email protected]

Luton – 01582 514000 or email [email protected]