Family law & domestic violence
01 November 1992
This recent Law Commission report presents argument and a draft bill for reform of the present law relating to domestic violence. It details proposals to widen the scope of injunctions designed to protect individuals from assault and harassment and extends powers to remove violent parties from the home.
Since the late 1960s public awareness and legal remedies have developed to enable the courts to offer legal protection to those individuals, mainly women, who are experiencing violence in the home. The Domestic Violence and Matrimonial Proceedings Act 1976, the Domestic Proceedings and Magistrates Courts Act 1978, the Matrimonial Homes Act 1983, divorce proceedings and actions for assault and trespass can all be employed to protect these individuals. However, the very proliferation of legislation indicates that successive legal solutions had not provided the means to deal with the very wide and varied nature of the problem.
At present, the plethora of statutory remedies are only available to those who are married or those who are or who were cohabiting at the time of the violence. Other individuals have to rely on a civil action for assault or trespass, a remedy that cannot provide a power of arrest or deal adequately with issues of occupation of the "family" home.
Neither do the statutes recognise the large number of individuals who experience violence at the hands of other close relatives; when members of extended families believe that a woman has offended against their cultural traditions; older sons side with their fathers adopting their negative attitudes towards their mothers; or elderly relatives are perceived to be a burden.
The Law Commission is proposing comprehensive reform with a draft Family Homes and Domestic Violence bill designed to replace the previous fragmented remedies and extend protection to all former spouses or cohabitees, members of the extended family household, a defined group of close relatives, groups of friends sharing accommodation, former fiances and fiancees, those who have had a sexual relationship, parties sharing parental responsibilities and parties to the same family proceedings. In essence, this will offer protection to all those with close family or social ties.
The Law Commission discussed, but rejected, proposals to widen the scope of the bill even further to include those harassed at work or within a landlord and tenant situation. Having recognised the need to protect certain categories of person perceived to be potentially vulnerable to violence and harassment it is unfortunate that they failed to acknowledge that tenants and employees formed just such categories.
The criteria for invoking the new non-molestation orders is broad recognising the need to respond to a wide variety of circumstances, not merely overt physical violence and focuses on protecting the health, safety and well-being of the applicant or child.
Occupation of the home
The Report proposes that the present variety of ouster, occupation and exclusion orders be replaced by a single occupation order. This order will be declaratory where the applicant already has a pre-existing right to occupy. In other cases, the orders would be regulatory and require one party to leave the property, allow the other party to return or regulate use of the property.
Where there is joint entitlement to the property, regulatory orders will be available to the categories of individual entitled to a non-molestation order. Where the applicant has no such entitlement, it will be available to spouses, ex-spouses, co- habitees and ex co-habitees.
The draft bill will set out criteria to be met before granting regulatory orders, which will take into account the respective needs and financial situation of the parties and the likely effect of an order on the parties and any children involved and whether significant harm might be suffered if such orders were not made.
Family Law Domestic Violence and Occu