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This information has been
provided by Northern Ireland Women’s Aid Federation.
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.
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 heard 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.
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.
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”. Other family
members are “associated persons”; so, for example,
an elderly parent whose adult son is being violent could get
an order. 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. Former spouses or co-habitees, are also “associated
persons”, as are people who used to be engaged to each
other (they will need proof of engagement). 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.
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 it can make an OCCUPATION
ORDER. This 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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