An application for an Emergency Protection Order can be heard ex-parte and the courts may attach a power of arrest to the order or may accept an undertaking. The order is usually valid for 8days. Critique Much as the overriding aim of the government (in promulgating the Family Law Act 1996) is ensuring that provisions under the civil law offer the maximum protection to all victims to stop the violence recurring. Nonetheless, provisions under the non-molestation order and occupation order all short of providing a safety net for all.
The 'associated person' elite The 'associated person' criteria blatantly exclude people in relationship who have never lived together. This no doubt excludes a great lot of many unmarried partners who have never lived together. The reality is that this omission will continue to impact on the lives of victims whose well -being and safety is jeopardized by the lack of viable and meaningful protection against physical, psychological, and emotional assaults from their tormentor.
It is a known fact that with the high cost of property in England coupled with the shortages of affordable social housing, many unmarried partners are not able to climb on the property ladder or establish a joint family home. Hence there are a considerable number of young unmarried partners that are still living with their parents or sharing flats/house with friends. Where a relationship breaks down under the strain of domestic violence the victim would have no access to a non-molestation order and occupation order is clearly untenable.
In the same vein, same-sex couples do not count as cohabiting couples because the FLA defines cohabitation in terms of a man and woman. It is a common wisdom that the relevance of a law or legislation should be measured against it relevance to the status quo ante and status quo within its social jurisdiction. Gay and lesbian relationship is an impinging reality in modern day society, any law that disregard this social fact can be said to be discriminatory, myopic and non-consensual.
Also, the 'entitled' and 'non-entitled' categories with the occupation order qualifying 'associated person' category marginalizes a group of people (unmarried non-cohabiting couple without a child and same sex couples) by conferring them with no rights or vastly delimited rights. The existence of five variant kinds of occupational orders defeats the main objective of the order.
Rather than using this order as an oasis of protection for the victims of domestic violence the existence of a watershed 'cut to fit' variant orders belittle the fact that domestic violence is a defining problem in the lives of the people that are classified into variant categories. Applying different solution (based on qualifying matrimonial or tenancy status) to the same common defining problem seems a half-hearted commitment to eradicating the defining issue. Attitude of the judiciary and the legal system
Despite the government's good intentions in providing emergency effective and protective injunctive powers to the courts, the Bench, the Bar and the entire legal system would equally have to respond to and support the spirit of these legislation. Rather than frustrate the efforts of the government in bringing about speedy responsive protection to the victims of domestic violence, the judiciary would have to adopt attitudes and legal modalities that could foster the achievement of the desired results. The areas within the judiciary practices that calls for changes are amongst others:
Much as FLA strengthens and reinforce the power of the courts to hear ex-parte applications and pronounce relevant injunctive orders, but the process of actually serving the injunction on the respondent is still riddled with gridlocks. The inability to serve a notice on the respondent can delay a full court hearing for weeks thus exposing the victim to further assaults especially in a situation where the police and the court bailiff are unable to catch up with the respondent. Long Term Remedies Protection from Harassment Act 1997(Part-Section 3): Civil Remedy
This act generally prohibits harassment and it creates an offence of harassment breach of which is actionable in both civil and criminal courts. A civil remedy can be sought by the victim (which in this case does not have to be an associated person) by way of an injunctive protective order before the county or high court. Section 3 of this act creates a statutory tort of harassment wherein the victim could claim damages for anxiety caused and/or financial loss resulting from harassment or being put under the fear of violence by the defendant.
The applicant can within the same proceedings seek an injunction restraining the defendant from pursuing any conduct, which may amount to harassment, or being put in fear of violence. Usually, a power of arrest cannot be attached to this stipulation but where there has been a breach the applicant can apply for a warrant of arrest. A person guilty of an offence under this act is liable on conviction to prison terms of six months to five years or a fine or both. Divorce or Judicial Separation (Matrimonial Causes Act 1973 & Family Law Act 1996)
Within the provisions of these acts the only acceptable ground for a divorce or judicial separation is the irretrievable breakdown of marriage. Unreasonable behaviour by way of violence and physical assault is an acceptable is an acceptable ground for divorce. The new provisions in the FLA 1996 have substantially amended provisions under the MCA 1973. The Matrimonial Causes Act 1973 is the basis of current legal provisions on divorce. It provides a method of regulating and sharing the matrimonial home, property and finance.
No divorce petition can be made until the marriage has lasted a year although it is possible to apply fro a judicial separation before this time. A decree nisi is pronounced in court when the court is satisfied that there are grounds for divorce. Although this does not end the marriage, it ensures that the couples are given further opportunity to reconcile. A decree absolute, which legally dissolves the marriage, can be granted six weeks after the decree nisi provided the court is satisfied with the arrangements for the child/children.
Where there is no mutually consented agreement between the divorcing couple or where the court is not satisfied with the agreement; the court would make an order on the sharing of property, finance, and liabilities with strong consideration given to the well being of the relevant child/children. It's worth noting that where an occupation order and/or non-molestation order is made within a divorce proceedings, the court would decide whether to uphold or extend any or both of the orders or bring it to an end.
Whilst the Protection from Harassment Act provide easy to access protection to almost a wider range of people but the requirement for a proof of conduct which shows an offence "committed by following a course of conduct which amounts to harassment or causes of fear of violence to another person" - if the perpetrator knows that it would cause a fear of violence. In addition, this cause of conduct needed to have been committed on at least two occasions. This hurdle makes it more difficult to prove harassment (since intentionality of the perpetrator must also be proved) in a civil proceeding.
Moreover, it is most unlikely that the highest percentage of domestic violence victims would be able to afford the cost of instituting a civil proceeding against their tormentor. This is compounded by the new restrictions on eligible applicants for legal aid. Also, since PHA can be used proactively to forestall serious act of domestic violence it has been shown that the police tend not to take such 'minor offences' seriously. The police are yet to see the protection offered under PHA as a pre-emptive opportunity to nip domestic violence in the bud.
In the same vein, in face of possible civil remedy in a domestic dispute the police are likely to be indifferent when a victim prompts them to get involved in bringing criminal prosecution against the offender. Where a victim applies for an injunction as a civil remedy, there is however no provision within PHA for the attachment of a power of arrest. To get the offender arrested the victim has to apply to the court for a warrant of arrest which then has to be passed on to the police.
As well as being a particularly distressing and emotional process, divorcing one's partner is a very expensive and sometime financially crippling venture. Depending on one's social - economic status the cost of hiring a divorce solicitor is quite prohibitive especially when the parties in question are just barely scrapping a living. Over dependence on Legal Aid has led the government to introduce stricter means test eligibility criteria. Sometimes the application process for Legal Aid is unbelievably slow, and often the solicitors requires deposit or upfront part payment.
Hence, many divorcees have found themselves heavily in debt as a result. A much simpler and straightforward divorce procedure, which could do without 'fat cat' solicitors and barristers, would alleviate this problem. The stipulations on divorce under MCA 1973 makes it compulsory that a marriage cannot be dissolved until after a year. The gruesome reality of a person suffering both physical and psychological humiliation within a marriage should have informed a provision for an accelerated or fast track divorce in some specified circumstances - domestic violence being one.
The provision within the act for the court to agree to a financial and property agreement that have been mutually agreed by the parties leaves open the possibility of the abuser with excessively overbearing tendencies to exert pressure (emotionally, psychologically and where possible physically) on the victim. Frightened and wanting a quick exit from the marriage without any reprisal: the victim could capitulate to a pseudo-arrangement, which the court would most likely endorse. The divorce provision under this act concerning prescribed property settlements considerations could unwittingly end up benefiting the 'abuser'.
Where the 'abused' party to the divorce is exceedingly rich the final settlement for the 'abuser' would no doubt (going by the equation prescribed) be substantial. This could possibly inform a new public perception that abusing ones' spouse pays for as long as one marries rich. There should be a stipulation within the divorce legislation, which enjoins that the secondary consideration in a divorce settlement hearing, after considering the well being of the relevant child, should be the conduct of the parties. The present legislation does not deter the abuser from repeating the same pattern of abuse in his/her next relationship.