New protection for domestic abuse victims – 2021 Review

The Government’s long-awaited Domestic Abuse Bill, which will bring in new protections for victims of domestic abuse, is finally nearing the end of its passage through parliament. But what exactly is going to change when the Bill becomes law?

There are too many provisions in the Domestic Abuse Bill for them all to be covered here, but the following are perhaps the most important, at least from a family law perspective.

Domestic abuse defined

The Bill includes the first statutory definition of domestic abuse, which will hopefully encourage both victims and perpetrators to understand just what constitutes domestic abuse.

In particular, the definition makes it clear that abuse is not just violent or threatening behaviour, but also includes controlling or coercive behaviour (such as restricting the victim’s contact with family and friends), economic abuse (such as restricting the victim’s access to money), and “psychological, emotional or other abuse”.

Anyone who believes that they are the victim of any of these types of abuse will be able to seek the protection of the law.

Domestic Abuse Commissioner established

The Bill will establish a new office of ‘Domestic Abuse Commissioner’.

According to the Government: “The role of Domestic Abuse Commissioner will lead on driving improvements on the response to domestic abuse in the UK, championing victims and making recommendations on what more should be done to better protect victims and bring more offenders to justice.”

The first Commissioner, Nicole Jacobs, has already been appointed, and will take up her role when the Bill becomes law.

New Protection Orders

The Bill provides for a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order.

A Notice, which may be given by a senior police officer, prohibits the person to whom it is given from being abusive towards a person aged 16 or over, to whom they are personally connected. A person breaching the Notice may be arrested and taken before a magistrates’ court.

An Order prevents a person from being abusive towards a person aged 16 or over to whom they are personally connected, by prohibiting them from doing things described in the order, or requiring them to do things described in the order. The court may impose any requirement it considers necessary to protect the victim, including requiring the abuser to submit to electronic tagging. Breach of the Order is a criminal offence.

Cross-examination of victims by perpetrators prohibited

Importantly, the Bill will prohibit the cross-examination of alleged victims of abuse by their alleged abusers in the family courts.

This is an all-too common issue, aggravated by the fact that alleged victims often do not have legal representation, so have no one to conduct the cross-examination on their behalf. In such cases, if the court decides there is no satisfactory alternative, it may appoint a legal representative to cross-examine the alleged victim, the fees of whom may be paid by the state.

In-court protections for victims

The Bill will introduce special in-court protections for victims of abuse, where the court considers that they are necessary. The measures available include giving evidence behind a screen, or via live link.

Homelessness assistance

The Bill will provide that all eligible homeless victims of domestic abuse automatically have ‘priority need’ for homelessness assistance from their local authority, meaning that the authority must provide the victim with emergency housing.

Controlling or coercive behaviour extended

The Bill will strengthen legislation around controlling or coercive behaviour, no longer making it a requirement for abusers and victims to live together. This change follows a government review which highlighted that those who leave abusive ex-partners can often be subjected to sustained or increased controlling or coercive behaviour post-separation.

‘Revenge porn’ outlawed

Laws relating to the sharing of intimate images – so-called ‘revenge porn’ – will be widened to include threats to disclose intimate images with the intention to cause distress.
Such behaviour is a criminal offence, and will remain subject to the existing 2-year maximum prison sentence.

Non-fatal strangulation offence

Lastly, the Bill will deal with another common complaint of victims of abuse: the perpetrator attempting to control or intimidate them by strangling or intentionally affecting their breathing. This practice leaves no visible injury, making it harder to prosecute under existing offences such as Actual Bodily Harm.

The Bill will make it an offence to intentionally strangle another person or do any other act that affects a person’s ability to breathe. A person convicted of this offence can face up to 5 years’ in prison.

Domestic Abuse During the Covid-19 Outbreak

Now that the Government has issued guidance which puts a large proportion of the UK in lockdown, meaning that people are confined to their homes and direct social interaction is kept to a minimum, Domestic Violence groups are understandably predicting an increase in incidents of Domestic Abuse.

Indeed, we acknowledge that being trapped with an abuser is a daunting (even terrifying) situation for many people who have been and continue to be victimised, however, there are still ways that you can get help even during this difficult period we are experiencing.

Despite this lockdown, there are still ways that you can protect yourself. If you fear for your safety, of course your first port of call should be the police. However, the options discussed below may also assist you.

There are many support networks out there for people who have experienced Domestic Abuse, both online and on the telephone, including Chayn, Refuge and Women’s Aid. These organisations are recommending that those who experience Abuse should find small moments to take for themselves and think of a safe place they can go to should matters escalate.

People suffering abuse should also try their best to continue to have electronic contact with family and friends who would ordinarily know if something is not right or out of the ordinary.

While this is all good advice, it should be remembered that there are still legal avenues which can be explored to protect yourself, despite the current situation with Corona Virus. Some options include a Non-Molestation Order or an Occupation Order.

Non-Molestation Order

This is an order which can be made by the Court to prevent your partner from engaging in violence against you, as well as threats of violence and/or pestering.
Before granting an order, the Court will have regard to all of the circumstances of the case including the need to secure the health and wellbeing of the person suffering and any children involved. This means that, if you can show a genuine need for the order to be made, the Court will grant it.

Non-molestation orders must be granted for a specified period, or alternatively until further order of the Court.

Occupation Order

An Occupation Order can exclude a person from a property for a period of time or until further order of the Court. There are different factors considered by the Court depending on your relationship to the other party and whether you have a right to occupy the property.

If you have the right to occupy

If you already have the right to occupy the property, either based on joint ownership, tenancy or any statutory right you will be entitled to make an application.

However, the Court must consider the following factors before granting an order:
1. The housing needs of the parties and any children involved;
2. The financial resources of the parties;
3. The effect of any such order on the health, safety or well-being of the parties and any children involved;
4. The conduct of the parties.

That being said, the Court must also consider the balance of harm test. This means that if it appears that you or any child is likely to suffer significant harm due to the conduct of the other party if an order is not made, the Court will make an order, unless:
1. The other party or any child would suffer significant harm if the order was made; and
2. The harm suffered by the other party is as great or greater than the harm the you will suffer at the hands of the other party.

If you are a former spouse or civil partner

If you are a former spouse or civil partner, the property must have been or intended to be the family home. The order must contain the following:
1. If the you are in occupation – that you have the right not to be excluded from the property by the other party for a specified period;
2. If the you are not in occupation – that you should be given the right to enter and occupy the property for a specified period.

The order may also contain provisions for excluding the other party from the property or the local area to the property. The Court must consider all of the factors listed below before making an order:
1. The housing needs of the parties and any children involved;
2. The financial resources of the parties;
3. The effect of any such order on the health, safety or well-being of the parties and any children involved;
4. The conduct of the parties;
5. Time which has elapsed since the parties lived together; and
6. Any pending proceedings in respect of the marriage or the children.

If the application is to exclude the other party from the property, the balance of harm test must also be considered. The order cannot exceed 6 months in length, however this period can be extended any number of times by further orders of up to 6 months each if it is considered necessary to protect you.

You are a former cohabitant

If you cohabit with the other party, or you have previously cohabited with the other party, you are also able to make an application for an order. In order to do this, the other party must be entitled to occupy the property. The property in question must be, or have been, or was intended to be your home.

If the order is granted, it must contain the provisions discussed above in relation to whether you are in occupation or whether you are not in occupation. The Court must consider the following factors when deciding to grant an order:
1. The housing needs of the parties and any children involved;
2. The financial resources of the parties;
3. The effect of any such order on the health, safety or well-being of the parties and any children involved;
4. The conduct of the parties;
5. The nature of the parties relationship;
6. If there are any children who are the children of both parties or that both parties have Parental Responsibility for;
7. The length of time since the parties cohabited; and
8. Any pending proceedings in respect of the property or the children.

Although the balance of harm test must be considered, unlike in the previous two situations, the Court are not obliged to grant an order if the test is met, only to consider it.

Even during these unprecedented times, the Courts are still operational. At Austin Kemp, we are working as usual and can arrange telephone appointments at a time to suit you. We are keen to help anyone that needs it so if you feel you need advice, please do not hesitate to contact us to arrange a consultation.

For further information on Domestic Abuse and Divorce please click this link.

Domestic abuse and divorce – How can we help?

Domestic abuse during divorce may be much more common than many of us realise. According to Refuge, one woman in four experiences domestic violence in her lifetime.

Domestic abuse can be physical, emotional, financial, psychological or sexual. Indeed, Refuge defines abuse as “anyone forced to alter their behaviour because they are frightened of their partner’s reaction”.

As divorce solicitors, it is not unusual for us to come across people who are being abused by their spouse, whether it be physical, sexual or in one of the other, sometimes more difficult-to-spot, ways above.

Getting advice from a solicitor about domestic abuse

Often, people who are experiencing domestic abuse may not want to tell anyone about what they are going through. It is not uncommon to feel embarrassed about what is happening. Or to feel that even if you did speak up, you may not be believed. 

Even someone who has made the decision to leave their abusive partner and seek a divorce may not want to speak out about what has happened to them.

When going through a divorce, it is not unusual for the abusive spouse to threaten the other spouse with domestic abuse, telling them things that may not be true. For example, we sometimes speak to clients whose spouse had told them that they would lose any rights they had to the family home if they moved out, or if they made their spouse move out, their spouse would refuse to pay the mortgage.

Seeking advice from your solicitor on your individual circumstances can help to put your mind at rest and separate out the truth from the lies. A solicitor can also discuss your options with you and talk you through what your next steps could be and to prevent further domestic abuse.

Going to court for an injunction 

In some circumstances, it may be necessary to go to court to stop the abusive spouse making contact with the other spouse.

Alternatively, someone may want to seek an injunction to stop their abusive spouse living in the family home.

Emergency injunctions are available for those who need immediate protection. 

Injunctions are not the right option for everyone but a good solicitor should be able to advise you of what may be the best way forward for you.

Domestic abuse and divorce and the next steps

Make sure you’re getting the right support. 

Legal advice as to your rights when you’re divorcing your abusive spouse, is just one element of the support that you’re likely to need. Charities, such as Refuge or the Men’s Advice Line, can also help you to deal with what has been happening to you.

Experiencing domestic abuse can make you feel isolated and can make the divorce process feel even more intimidating. Speaking to your solicitor about what has happened/is happening to you, can help you to take control of the situation and take the next steps towards divorce, with your legal rights firmly at the forefront of your mind.

How can our expert family law solicitors help you with domestic abuse concerns?

Our expert family law solicitors can help you with a range of legal issues:

• Prenuptial agreements
• Cohabitation agreements
• Post civil partnership agreements
• Divorce
• Domestic violence and harassment
• Child maintenance
• Child contact arrangements
• Divorce financial provisions

Contact our expert family law solicitors for advice on domestic abuse

For more information call our family law solicitors on 0845 862 5001 or email mail@austinkemp.co.uk.

Our expert family law solicitors offer a nationwide service. We have client meeting office facilities available, in order to have face-to-face client meetings / conferences as and when required in our:

Leeds Office: St Andrew House, The Headrow, Leeds, LS1 5JW

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Please contact us for more details.