The legal issues surrounding Domestic Violence – what can be done if you are a victim of domestic violence?

Sadly domestic violence is a feature of some relationships and can occur regardless of the background, age, race, religion, sexuality or economic circumstances of the parties. Here at Worthingtons, we have extensive experience of assisting victims of domestic violence to make sure they have the access to the legal remedies available to them to protect them from abusive relationships.

Protection is afforded to victims of domestic violence under the Family Homes and Domestic Violence (Northern Ireland) Order 1998 which addresses not just violence within domestic relationships but also can regulate who can live in the family home after a relationship breakdown. The Order provides protections to victims of domestic violence by virtue of what are known as Non Molestation and Occupation Orders.

What is a Non-Molestation Order?

This is an Order containing either or both of the following provisions:-

• a provision prohibiting the Respondent from molesting another person who is associated with the Respondent
• a provision prohibiting the Respondent from molesting a relevant child

‘Molestation’ includes the use of violence, the threat of violence, pestering, harassing and intimidation. It also includes procuring or insighting or assisting another person to ‘molest’ another individual

Who can apply for a Non Molestation Order?

An ‘associated person’ can. This is defined in the order as follows:

• they are married
• they have been married
• they are cohabitants (i.e. not married but living together)
• they are former co-habitants
• they live in the same household
• they have lived in the same household
• they are relatives Relatives include the following:- Father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandmother, grandfather, grandson, granddaughter Of a person or of that person’s spouse or former spouse and brother, sister, uncle, aunt, niece or nephew

If you do not fall in to any of these categories of ‘associated persons’ you cannot apply for a Non Molestation Order but other remedies may be available to you such as a applying for a Protection From Harassment Order.

What is an Occupation Order ?

This is an order which can declare, confer or regulate occupation rights to a family home.

Where is an applicant is entitled to occupy?

An applicant is an entitled applicant if he or she is entitled to occupy a dwelling house by virtue of:- a beneficial estate or interest a contract any enactment giving her the right to remain in occupation matrimonial home rights in relation to the dwelling house

When can the Court act?

If the dwelling house is either:

• is the home of the applicant and of another person with whom he or she is associated or
• has been the home of the applicant and of another person with whom he or she is associated
• was at any time intended by the applicant and a person with whom he or she is associated to be their home.

What can the Court Order contain?

• enforcing the applicant’s entitlement to remain in occupation as against the Respondent
• requiring the Respondent to permit the applicant to enter and remain in the dwelling house
• requiring the Respondent to permit the applicant to enter and remain in part of the dwelling house
• regulating the occupation of the dwelling house by either or both parties.
• prohibiting or suspending or restricting the exercise of the Respondent of his right (whether by virtue of a beneficial interest or estate, contract or enactment) to occupy the dwelling house
• restricting or terminating the Respondent’s matrimonial home rights
• require the Respondent to leave the dwelling house
• require the Respondent to leave part of the dwelling house
• exclude the Respondent from a defined area in which the dwelling house is included.

What issues will the Court consider before making an Order?

• the housing needs and housing resources of each of the parties and of any relevant child
• 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 powers on the health, safety or well being of the parties and of any relevant child
• the conduct of the parties in relation to each other and otherwise

When must the Court make an Order?

The Court must make an Order if it appears that the applicant or any relevant child is likely to suffer significant harm attributable to the conduct of the Respondent OR if an Order is NOT made unless it appears that:

• the Respondent or any relevant child is likely to suffer significant harm if the Order is made and
• the harm likely to be suffered by the Respondent or the child in that event is as great as, or 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.

The above is known as “the balance of harm test”

Emergency Applications

In an emergency, an application can be made to the court on an ‘ex parte’ basis, when the other party would not be present at court and on notice of the application. Any ex parte order would be granted for a short period of time and the matter would be adjourned to allow for the other party to make representations to the court in their defence.