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Domestic Violence is Everyone's Business
Written by Alison Brown and Sarah Nibbs
Domestic violence is a difficult and emotive subject which practitioners of both criminal and family law will have to consider at all too regular intervals. A family lawyer can help protect their client and explain the alternatives available relating to ending the relationship.
Domestic Violence – grounds for divorce?
One of the grounds for divorce is that of "unreasonable behaviour". Out of the many clients we see who could reasonably issue a divorce petition based on unreasonable behaviour, many are reticent about doing so. Usually, this is said to be because they do not wish to inflame an already acrimonious situation, but a significant number are frightened of the repercussions. Clients who choose to reject the ground of unreasonable behaviour often have to wait until they have been separated from their spouse for one year or more.
The person suffering from domestic violence very often blames themselves and feel guilty about their situation, accepting that it is somehow their fault. This is a view that the family lawyer has to address before the client is able to take steps to protect themselves and their children, by ending the relationship.
As practitioners, we will emphasize to a person subjected to domestic violence who wishes to end their marriage that the grounds of unreasonable behaviour will usually be available to them, and this will hopefully mean a swifter end to a violent marriage than waiting for a divorce on the grounds of either a year’s separation if their partner will consent; or, alternatively, a two year separation.
People do not always realise that the contents of a divorce petition are confidential between the parties, their lawyers and the Court and nobody else will know what is being said about the other, unless of course one of the parties themselves chooses to show other people. This is something we would always strongly discourage.
Injunctions
People suffering from domestic violence require, and rightly deserve, the special protection of the Court, for themselves and their children. A "non-molestation injunction" is a remedy to stop their partners assaulting them or prevent interference with their daily lives. Usually, non-molestation injunctions will contain a Power of Arrest against the offending party, which enables the police to arrest that person if they break the terms of the Injunction. Injunctions are an emergency measure and will only be granted where there is a real risk of harm.
It is always helpful if clients who seek this remedy can list as fully as possible the dates and the nature of any threats, attacks or assaults upon them or their children by their partners.
Domestic violence is generally actual violence and sexually abusive behaviour. However, an injunction may be obtained to prevent molestation which is a much wider concept, including persistent nuisance, verbal threats, controlling behaviour both on a personal level and by exerting an unreasonable level of financial control, bullying and unacceptable threatening behaviour.
Injunctions are always treated as matters of urgency by law firms and lawyers will need the client’s time and assistance to make sure that they have the correct detail and series of events to set out in the application (Order of Justice) and Affidavit (sworn statement) which must accompany it. The Order of Justice is then signed by the Court and then served upon the party (Defendant) who has perpetrated the harm. A further hearing is organised if the Defendant breaks the terms of the injunction. The Defendant will be arrested and brought to Court. If the breach is proved, the Defendant will be found to be in contempt of Court and either admonished for this, fined or, where it is deemed appropriate, sent to prison. In addition, the Police may instigate criminal proceedings.
An ouster injunction may be available which will ensure the removal of a violent partner from the matrimonial home or remove a violent partner to allow the client to return.
We try to support and encourage the our clients to rely on the terms of the injunction and not to go back to the person who has been perpetrating domestic violence upon them. Some women do reconcile with a violent partner, such is the pressure brought to bear on them. Sadly, our experience shows that very few people who perpetrate violence on a partner are able to prevent themselves from doing so again. Domestic violence will invariably escalate, showing how effective it is in controlling and undermining individuals.
Domestic Violence and children
Of the cases which involve children, up to 90% of children in those cases are in the same room, or in the room next door, when domestic violence occurs between the child’s parents. Apart from the obvious psychological effects this will have on a child, there are also likely to be repercussions in terms of the child’s interaction with the non-resident parent in the future. If domestic violence culminates in the ending of a relationship and one of the parents leaving the former matrimonial home then, in certain cases, the mother may not wish for the child to see their violent father or vice versa. It is then that contact may break down. Domestic violence is one of the very few reasons why contact is sometimes denied. Recent cases decided both in the United Kingdom and in Jersey send a clear message that, where domestic violence is proven, it is likely that contact between a child and the parent perpetrating the violence will be subject to close scrutiny. That parent may well lose their right to direct contact with their child, particularly if the violence was witnessed by the children or, indeed, perpetrated on them.
Whilst Courts will often stop short of disallowing a parent who has been guilty of domestic violence any contact whatsoever with their child, the Courts are very cautious in their approach and will usually insist upon a period of indirect contact only, in order to minimise the child’s anxiety and provide for their physical safety.
Victims of domestic violence do want the best for their children. Whilst they themselves have been the victims of domestic violence, they still believe their partners to be good parents to their children.
Many victims of domestic violence will therefore recognise the importance of a child maintaining contact with their parent unless such contact would be so destructive to the child’s emotional and physical wellbeing that there would a risk of psychological or physical harm to the child.
What both parents often fail to recognise is the risk that children will be learning that violence is an acceptable way to achieve their goal, thereby allowing domestic violence into the next generation.
Financial matters
There may be jointly owned assets which are difficult to free up. This is a particular problem for some women who may not qualify immediately for Family Allowance due to their perceived assets. Our advice to this particular group of women (and to those who need to issue an application for child maintenance payments and, possibly, for spousal maintenance if they find themselves in a situation where they have no money), would be to seek legal advice as soon as possible, via the Legal Aid system if necessary.
Family lawyers are used to dealing with clients whose money is not easily accessible. They will always find a way to help. Remedies are available to sufferers of domestic violence and lawyers will always try and deal as sensitively and effectively as they can with issues that confront the client. The most important advice to reiterate is to try and record events as they happen by writing them down and seeking legal advice as soon as possible.
THIS ARTICLE IS FOR INFORMATION PURPOSES ONLY AND NOT BY WAY OF LEGAL ADVICE. PROFESSIONAL LEGAL ADVICE SHOULD BE SOUGHT BEFORE ANY ACTION IS TAKEN.