Domestic abuse

This page explains the legal definition of domestic abuse and the legal steps that can be taken to protect a person and/or child from domestic abuse.

What is Domestic Abuse?

The Domestic Abuse Act 2021 created, for the first time, a cross-government statutory definition of domestic abuse, to ensure that domestic abuse is properly understood, considered unacceptable and actively challenged across statutory agencies and in public attitudes.

‘Abusive behaviour’ is defined in the act as any of the following:

• physical or sexual abuse
• violent or threatening behaviour
• controlling or coercive behaviour
• economic abuse
• psychological, emotional or other abuse

For the definition to apply, both parties must be aged 16 or over and ‘personally connected’.

‘Personally connected’ is defined in the act as parties who:

• are married to each other
• are civil partners of each other
• have agreed to marry one another (whether or not the agreement has been terminated)
• have entered into a civil partnership agreement (whether or not the agreement has been terminated)
• are or have been in an intimate personal relationship with each other
• have, or there has been a time when they each have had, a parental relationship in relation to the same child
• are relatives

What can I do if I suspect a partner has a history of domestic abuse?

Police in England and Wales operate a national disclosure scheme known as Clare's Law, where an individual has the right to ask and the right to know whether a current partner represents a risk of violence. 

It is possible for a third party to apply for disclosure under this scheme; however, the police can exercise their discretion as to whether to inform the potential victim and will not necessarily inform the third party themselves.

In circumstances where the police receive information that may affect a person’s safety, they can inform a potential victim or a person in a position to protect them. This right is regulated, and the police will only disclose information where it is lawful, necessary, and proportionate. The police should meet with other safeguarding agencies before making a disclosure, and the disclosure should be sufficiently detailed so as to allow the potential victim to make an informed decision.

What does the law say about domestic abuse?

If you have been a victim of domestic abuse, you can take steps to protect yourself from further incidents by the respondent (the person who is abusive towards you).

Domestic Violence Protection Notices (DVPN) and Domestic Violence Protection Orders (DVPO) can allow for protective measures to be put in place for a victim following a domestic incident of violence or the threat of violence involving a perpetrator aged 18 or over. These may be used, for example, where there is no substantive criminal offence to prosecute. Breach of a DVPO is not a criminal offence, but enforcement action can be taken in a magistrate's court as contempt of court.

A DVPN issued by the police prohibits the perpetrator from molesting the victim, as a minimum, which could include prohibiting the perpetrator from contacting the victim by any means. A DVPN may also exclude the perpetrator from the premises if they live with the victim. It also protects the victim and prevents further abuse until the matter goes before a magistrate. The DVPN is followed up with an application for a DVPO in a magistrate's court within 48 hours of service of the notice (not including Sundays, bank holidays, Christmas Day, or Good Friday). The resulting DVPO, if granted, lasts for between 14 and 28 days.

Other protective notices and orders include:

• Restraining Orders
• Stalking Protection Orders
• Forced Marriage Protection Orders
• FGM Protection Orders
• Non-Molestation Orders and Occupation Orders (see more below)
• Sexual Risk Orders

What is an Occupation Order?

An Occupation Order controls who can live in a property. It can also restrict the Respondent from entering a certain area.

If you do not feel safe living with the respondent or you have left because of violence or intimidation and want to return without the respondent being there, the order you would apply for is an Occupation Order.

Who can apply for an Occupation Order?

S.33 of the Family Law Act 1996 states that you can apply for an Occupation Order if:

You are entitled to occupy a dwelling-house by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him the right to remain in occupation, OR you have home rights in relation to a dwelling-house
AND
The dwelling-house is or at any time, has been the home of the person entitled and of another person with whom he is associated, OR was at any time intended by the person entitled and any such other person to be their home.

This means that you can apply if:

• You own or rent the home and it is, was, or was intended to be shared with a spouse, civil partner, cohabitant, family member, person you are engaged to or parent of your child
• You do not own or rent the home but you are married or in a civil partnership with the owner and you’re living in the home
• Your former spouse or civil partner is the owner or tenant, and the home is or was intended to be your shared matrimonial home
• The person you cohabit or cohabited with is the owner or tenant, and the home is or was intended to be your shared home

What is a Non-Molestation Order?

A Non-Molestation Order prevents the respondent from using or threatening violence against you (and, if applicable, your child or children) or intimidating, harassing, or pestering you. This is to ensure your health, safety, and well-being (and, if applicable, that of your child or children).

A breach of a Non-Molestation Order is an arrestable offence and now carries a maximum sentence of five years imprisonment.

Who is an Associated Person?

It is only possible to apply for a Non-Molestation Order or Occupation Order if you can prove to the court that you fall under the category of being an associated person. This means that your relationship with the person against whom you are seeking an order must fall within one of the categories laid out in the Family Law Act of 1996.

You may be an associated person if one of the following applies to you:

• I am married to or in a Civil Partnership with someone who is domestically abusive to me
• I am or have cohabited with someone who has been domestically abusive to me
• I used to be married to or in a Civil Partnership with someone who is domestically abusive to me
• I am or was engaged to someone within the last three years who has been domestically abusive to me
• I am related to someone who has been domestically abusive to me
• I am in family law proceedings and a party to those proceedings was domestically abusive to me
• I have been in an intimate relationship of a significant duration with someone who has been domestically abusive to me
• I have a child or children with someone who has been domestically abusive to me.

What is the difference between a with notice and a without notice application?

If you want to make an application for a Non-Molestation or Occupation Order, you should carefully consider whether notice should be given to the other parties in the case. If you are in immediate danger, an application can be made to the court on the same day without the respondent being there. This is called a without notice (ex parte) application. The court must consider:

• whether or not you are at risk of significant harm;
• whether you will be prevented or deterred from applying if you have to wait; or
• whether the Respondent is avoiding being served notice to appear before the court.

If the court grants a without notice order, it will usually list the matter for a full hearing once the other side has been served with notice.

How do I apply for an Occupation Order or a Non-Molestation Order?

Apply online

Apply online using RCJ Advice’s CourtNav service. Before you apply, you’ll need to create an account. If you need help using this service, contact CourtNav:

Phone: 0203 974 7899 (The line is open between 9 am to 6 pm Monday to Friday and 10 am to 12 pm on Saturdays).

Email: CourtNav@rcjadvice.org.uk. 

Apply by email, post or in person

1. Fill in the application form FL401. 
2. Write a supporting statement that explains what happened to you. You can either use the template or you can write your own. 
3. If you do not wish your address or phone number to be disclosed to the Respondent, you should complete a form C8, making sure you make it clear that your address is confidential.
4. Email, post or hand in your documents to your local family court. There is no fee to be paid. 

What evidence do I need to apply for an Occupation Order or a Non-Molestation Order?

You will need to make a statement to the court about the type of abuse you have experienced. You should be as precise as possible about all the ways you have been harmed, the dates and times (if you have them), and the effects on you and, if relevant, your children.

A template supporting statement can be found here. 

In this statement, it is important that you provide the court with as much evidence as possible of the harm caused by the respondent's behaviour. If you have kept a record of past events or have independent evidence such as police reports or medical records, it is useful to say this in your statement and try to provide copies of it.

In your statement, you should also explain why you're making this application urgently and without telling the respondent (if it is a without notice application). One reason for this could be that you fear the reaction of the respondent if they find out what you are doing.

If you write your own supporting statement without the template, you must include a ‘statement of truth’ at the bottom of your statement. Use the following words:

“I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. I believe that the facts stated in this form and any continuation sheets are true.”

How is an order served on the respondent?

Personal service for an order is required. This means that you should arrange for a printed copy to be handed personally to the respondent. The injunction will not be effective if there is no proof that the respondent received it. 

Under Part 10 of the Family Procedure Rules, the applicant for a Non-Molestation Order or Occupation Order should not serve the documents personally themselves; they must make arrangements for the documents to be served by someone else on their behalf instead.  Court staff should be able to provide you with a list of people who are authorised to serve court orders and to provide a 'certificate of service'. There is usually a charge.

It is vital that you make arrangements for serving the order, as an injunction cannot be enforced unless the respondent knows about it.

A copy of the order must also be delivered to your local police station. The form must be served together with a statement showing that the respondent has been served with the order or otherwise informed of its terms. If the court makes an occupation order, you must serve a copy of this by first-class post on the mortgagee or landlord of any relevant property.

What is a return date?

Whenever the court makes either a Non-Molestation Order or an Occupation Order without notice (ex parte), the court should set what is known as a return date. Ex parte orders only tend to be made temporarily until the next hearing.

This is a hearing where the respondent has the opportunity to state if they agree with the order (or why they feel that the order should not be made fully). The respondent will be present and will be able to speak to the judge, either in person or using a representative.

At this hearing the court has the option to:

1. continue the orders that have been made and set a timescale for the orders to be terminated;
2. discharge the orders;
3. continue the orders until a further hearing but request more evidence or further statements;
4. accept an undertaking from the respondent in place of the order.
5. The court may think it appropriate for cross-undertakings to be made for both parties.

What is an undertaking?

The court sometimes suggests that, instead of an injunction, the respondent should make an undertaking (a solemn promise) to the court with similar terms to that in the order.

This is supposed to have the same strength as a court order, and a breach of an undertaking constitutes contempt of court. If the respondent breaches an undertaking, you would need to return to court and apply for their committal for contempt of court.

How do I enforce an Occupation Order or a Non-Molestation Order?

Breach of a Non-Molestation Order is an arrestable offence under section 42A FLA 1996 and the respondent could be found guilty of a criminal offence.

An Occupation Order may have a power of arrest attached to it (at the discretion of the court). This would allow the police to arrest the respondent if there is reasonable cause to suspect that the order has been breached.

If you believe that a Non-Molestation or Occupation Order has been breached, we would advise you to call the police.

In which circumstances is legal aid available when there has been domestic abuse?

Legal aid is available when making an application for a Non-Molestation Order or Occupation Order if there is evidence of domestic abuse or a risk of domestic abuse.

For more information on legal aid, see our information pages:

• Legal aid if you have been a victim of domestic abuse.
• Legal aid if your child is at risk of abuse.

Please note that if a Non-Molestation Order and/or an Occupation Order have been granted in your favour, this in itself is a gateway to obtain legal aid for other family and child law disputes.

How do the courts consider a history of domestic abuse in private Family law proceedings?

Practice Direction 12J sets out the approach of courts in any application for contact, residence, and child arrangements where there is alleged or admitted domestic violence, abuse, or risk of this by a party to the case. This practice direction was recently amended in October 2017. In this context, domestic violence includes any incident or pattern of incidents of controlling, coercive, or threatening behaviour, violence, or abuse between those aged 16 or over who are or have been intimate partners or family members, regardless of gender or sexuality. This can encompass, but is not limited to, psychological, physical, sexual, financial, or emotional abuse. Domestic abuse also includes culturally specific forms of abuse, including, but not limited to, forced marriage, honour-based violence, dowry-related abuse, and transnational marriage abandonment.

‘Controlling behaviour’ means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance, and escape, and regulating their everyday behaviour.

‘Coercive behaviour’ means an act or a pattern of acts of assault, threats, humiliation, intimidation, or other abuse that is used to harm, punish, or frighten the victim.

The presumption of contact (contained within the Children and Families Act) has to be carefully considered in this practice direction where there is an allegation or admission of domestic abuse to the child or parent or there is a risk of domestic abuse to the child or parent. The court was only required to evaluate harm or the risk of harm to the child in previous revisions, whereas consideration must now be given to the other parent. The concerns that had been raised were that, prior to this revised practice direction, the law effectively required the courts to allow 'contact at all costs' in all cases without a proper evaluation of the risk of harm from domestic abuse.

At all stages of the court process, particularly in the First Hearing Dispute Resolution Appointment (FHDRA), the court must consider whether domestic violence is raised as an issue and:

• identify the factual and welfare issues involved
• consider the nature of the concern and their relevance to child arrangements
• give directions to hear contested factual and welfare issues in a prompt and fair way
• where violence or abuse is admitted or proven, ensure that child arrangements protect the safety and wellbeing of the child and other parent and do not expose them to the risk of further harm. Any contact ordered with a perpetrator of violence or abuse must be safe and in the best interests of the child.
• ensure that any interim arrangements are in the best interests of the child and consider whether the safety of the child and the other parent can be secured before, during, and after contact.

In any case where a risk of harm to a child arising from domestic abuse or violence is raised as an issue, the court should consider directing a section 7 report by CAFCASS or Children's Services, unless this is not necessary to safeguard a child's interests.

For the first time, this Practice Direction raises a presumption against interim contact in cases involving domestic abuse and thus places the onus on the parent who is the subject of the allegations to satisfy the court that such contact will not expose the child and/or the parent to an unmanageable risk of harm. This is significantly different from the former provision, which only applied where the court ordered a fact-finding hearing, whereas the revised wording applies when a fact-finding has been directed or 'where disputed allegations of domestic abuse are otherwise undetermined'.

The court should find information about local facilities for victims and perpetrators of domestic abuse. The court can direct that a party seek advice, treatment, or other intervention before having any contact with a child. The court can make a contact activity direction, such as requiring a perpetrator to attend a Domestic Violence Perpetrator Programme (DVPP). More information can be found on DVPPs here.

Cross Examination

The Domestic Abuse Act 2021 introduced an automatic ban on cross-examination in person:

• where one party has been convicted of, given a caution for, or charged with certain offences against the witness;
• where an on-notice protective injunction is in place between the party and witness;
• where there is other evidence of domestic abuse perpetrated by a party to the proceedings towards a witness (or vice versa). This evidence will be specified in regulations, and we intend to broadly replicate the evidence criteria used in the legal aid regime.

In each of these circumstances, the ban will apply both ways: it will protect the victim from cross-examination by their abuser and from having to cross-examine their abuser themselves.

The automatic prohibition will therefore also apply where there is other evidence of domestic abuse, such as that relevant for the purposes of accessing civil legal aid in England and Wales.

Where cross-examination in person is prohibited, the provisions require the court to consider satisfactory alternatives, and where there are none and it is in the interests of justice, the court has the power to appoint an advocate for the sole purpose of cross-examining the witness on behalf of the party.