1.
The Legal Options 2. Legal
Aid 3. Going to Court
4. Family Homes and
Domestic Violence NI Order 1999 5.
The Old Law
The
Legal Options
The
legal system is important in protecting the rights of people.
In recent years progress has been made regarding legislation
designed to protect those experiencing domestic violence.
The
framework of the law reflects the values of society. Using the courts can however be a daunting experience.
A
helpful solicitor is a great asset.
Women are likely to need a solicitor in connection with
separation, custody, access to children, occupancy of disposal of the
matrimonial home and division of other properties, plus obtaining orders
from the court.
A
solicitor's role is to act in the woman's best interests, drawing on
expert knowledge to explain legal options.
Women's
Aid can also support the woman through this process.
Legal
Aid
i.e. help with costs, is usually available.
Those solicitors on the Legal Aid list can be found at public
libraries, Citizens Advice Bureaux or local advice centres. After the solicitor is satisfied that proceedings can be
taken, a court hearing will be arranged in about 1 to 2 months if it is
to be heard in Petty Sessions as are separation and maintenance orders.
Divorce and wardship cases are heard in the High Court.
Wardship cases are likely to be herald sooner than this, if an
emergency arises, while divorce may take longer.
The time scale is likely to be longer in rural areas.
If both parties are getting Legal Aid, no order for costs will be
made - i.e. all will be paid out of the Legal Aid fund.
If a wife makes a successful application to the court and her
husband is not receiving Legal Aid, he may be ordered to pay costs.
If a wife makes an unsuccessful application to the court, usually
no costs are awarded against her.
Going
to court
This
can be quite an ordeal. Even
the thought of going to court can produce a lot of anxiety, while the
possibility of going into a witness box to give evidence, can be
intimidating for the majority of women.
This is a time when Women's Aid can offer support.
However in many instances the man does not appear in court and
the woman can proceed in his absence.
Matrimonial courts are private and confidential and not open to
the press or public.
The
law in this area is complex and decisions taken will have far reaching
consequences. The role of
the solicitor is to advice on court orders which are appropriate.
The
law has changed recently. The
Family Homes and Domestic Violence (NI) Order 1998 which came into force
at the beginning of 1999 changed the law quite significantly.
It is the statute which will be used most in combating domestic
violence, but other aspects of the law, such as criminal law also have a
role to play.
Who
does the new law protect?
It
used to be that only a spouse or cohabitant could get an order to
protect them from violence at home.
Under the new law, the court can make an order in favour of a
much wider range of people, called “associated persons”.
²
Other family members are “associated persons”; so, for
example, an elderly parent whose adult son is being violent could get an
order.
²
People who are parents or have parental responsibility for the
same child are also “associated persons”.
This could cover a wide range of situations; for example an
adoptive parent could get an order to protect them from an abusive
natural parent.
²
Former spouses or cohabitees, are also “associated persons”,
as are people who used to be engaged to each other (they will need proof
of engagement).
²
Because of the wide range of living arrangements which people in
Northern Ireland now have, there is also a “catch-all” category of
“people who are living in the same household other than as lodger or
tenant”. This could
cover, for example a group of friends sharing a house.
What
can the court do for them?
Under
the new law, the court has two main powers.
It can make a non-molestation order, which prohibits the other
party from molesting the applicant or another associated person.
Molestation is a wider term than violence (although violence is
included). It includes any
behaviour which will upset or annoy the applicant, so it may include
things like waiting outside her house in a car, making nuisance phone
calls, or damaging her property. The
applicant does not have to prove that the other party has been violent
to her; but her evidence does have to be sufficient for a judge to hold
that an order is necessary.
The
court’s second main power is that making an occupation order is
available to a narrower range of people than a non-molestation order,
because it can involve putting the other party out of his house.
It is available to a spouse, cohabitant, former spouse or former
cohabitant, or to another family member who has property rights in the
house (for example, an elderly parent with a life interest in a farm
house). An occupation order
can be made with respect to a rented property or an owner-occupied one.
The court has power to regulate the use of the property, but not
who owns it-it cannot give someone a permanent interest in the house.
The
court will make an occupation order after considering a number of
factors, including how easy it is for each party to find alternative
accommodation, and how the welfare of any children may be affected. Again, there does not have to be violence for an order to be
made, but violence is a relevant factor.
The court has to ask itself whether one of the parties or any
children will suffer greater harm if an order is not made than if one is
made, and violence will often tip the balance in favour of making an
order.
The
occupation order can bar one party from the house, or give the other a
right to live there, as well as having several more specialised
“add-on” options such a s allowing one party to return to collect
specific possessions, or forbidding him from (for example) cutting off
the electricity or trying to sell the house.
It can be for a limited period of time up to a maximum of twelve
months, or for an indefinite period if the applicant is a spouse.
If it is for a limited period, it can be renewed.
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