The of Domestic Violence - Case Study Example

 A year ago Homer and Maria met at a party. They dated a few times and then Maria informed Homer that she needed somewhere new to live. Homer invited Maria to come and live at his flat which was registered in his sole name. Maria agreed and moved in two days later. They had sexual intercourse many times but had separate bedrooms. They frequently slept together in each other’s bedrooms. They usually ate together and often went out together. Maria did not pay rent but did pay for her own food and contributed to the bills but not the mortgage. They shared the housework. Every two weeks Homer was away on business for four days. Maria constantly criticised Homer in respect of everything. She complained about the way he dressed, his haircut, the décor of the flat, his untidiness and generally undermined him. Homer became increasingly unhappy about Maria’s criticisms. He would often rummage though her handbag and go though her personal things in her room. Although Maria asked him repeatedly to stop his reply was “This is my flat and I can do as I like.” Two weeks ago Maria came back to the flat to find Homer using her mobile phone. She was very angry and tried to snatch the mobile phone off him. He hit her in the face, knocking her to the ground unconscious. She recovered consciousness several hours later and she called a friend who took her to hospital. She was diagnosed with concussion and went back to the flat two days later. Homer behaved as if nothing had happened. A few days ago Maria complained to him about the mess in the kitchen and he slapped her in the face very hard causing extensive bruising. Homer was shocked that he had reacted violently again to Maria’s criticisms and apologised profusely saying that he would seek help. Maria said she would get an order to protect herself and have him thrown out of his own flat. She comes to you seeking advice. In the above situation it is necessary to look at the relationship of Maria and Homer. As they have separate bedrooms it is necessary to determine whether the court would regard them as a couple. It could be argued that in many respects they are living together as though they are married, however, the fact that they have remained in separate bedrooms could be used as evidence to show that they are living separate lives. With reference to the Domestic Violence, Crime and Victims Act 2004 the use of non-molestation orders and occupancy orders can be explored to determine whether the court may resort to excluding Homer from the property. Within UK legislation there is no statutory definition of domestic violence. Under the term domestic violence the authorities usually regard such behaviour as criminal although not all such classified behaviour is criminal. Domestic violence in the UK is usually regarded as physical violence between partners or former partners. Domestic violence can extend to other family members but the official definition of domestic violence remains vague. The Home Office attempted a definition in the terms of ‘Any violence between current or former partners in an intimate relationship, wherever and whenever it occurs. The violence may include physical, sexual, emotional or financial abuse1’. A similar definition was attempted by the Audit Commission’s Best Value Performance Indicators in assessing the performance of police authorities abilities to deal with domestic violence2. Their definition of domestic violence is ‘any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or are family members regardless of gender’. The Crown Prosecution Service have extended the definition further to include ‘current and former’ family members3. It would appear from the above that Maria is likely to be regarded as a victim of domestic violence as the couple have had an intimate relationship in that they have regularly engaged in sexual intercourse. Having established this it would seem likely that the courts would consider issuing a non-molestation order to prevent Homer from attacking Maria in the future. Under s62(3) of the Family Law Act 1996 a person is regarded as an associated person if (a) they are or have been married to each other; (b) they are cohabitants or former cohabitants; (c) they live or have lived in the same household, otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder; (d) they are relatives; (e) they have agreed to marry one another (whether or not that agreement has been terminated); In the above situation with Maria she could be regarded as an associated person as she has been cohabiting with Homer. However, Homer could argue that Maria has only been staying there as a lodger. If he can prove this then the courts will not regard them as cohabitants and this could affect whether Maria is entitled to remain in the house. It is necessary next to consider whether the court would allow Maria to remain in the property and order Homer to leave. When considering occupation orders it is necessary to examine the Family Law Act 1996 to determine the circumstances when such orders might be granted. It is also necessary to consider the effect of the Domestic Violence, Crime and Victims Act 2004 and the impact this has had on the Family Law Act provisions. Under s41 of the 1996 Act the courts were required to consider the relationship of cohabitants or former cohabitants in respect of their non-marital status. This section was repealed by the 2004 Act. Under s36(6)(e) of the Family Law Act 1996 when the court are deciding on the right to occupy for a cohabitant or former cohabitant who would ordinarily have no such rights the courts have to consider the relationship of the parties. The 2004 Act had the effect of inserting a further qualification necessary to satisfy the right to occupy. The courts have now got to consider the level of commitment of the parties in the relationship. This might cause difficulties for Maria in the above scenario as the relationship is essentially a casual relationship. This could mean that the courts would not order Homer to leave the home. Maria could attempt to argue that she has in essence been performing the usually duties and functions as though they were a proper couple, however, the fact that they have remained in separate bedrooms could be used as evidence to show that essentially they are leading separate lives. In considering whether Maria could have Homer removed from the property it is necessary to highlight the difficulties that arise where the property has only been registered in one name as in the above. In such cases the courts will be asked to decide whether the other party ought to be entitled to a share. In these cases the courts can infer joint ownership under the principle of implied4 or constructive trusts5. A constructive trust could be inferred if the actions of the parties would appear to suggest that they expected to have an interest in the property. This assumption can be made from evidence showing direct contribution to the household bills or to repairs in the property6. Evidence that money was paid towards the purchase price could lead to the presumption of a resulting trust which would entitle that party to a direct share of the property. Given that Maria has contributed to the household bills it may well be that the court will hold that a constructive or implied trust has been created. If this is the case then the courts might be able to order Homer to leave the property. With regard to the assault the courts would be entitled to issue a non-molestation order regardless of whether Homer was allowed to remain in the property or not. Under the Domestic Violence, Crime and Victims Act 2004 the police have now been given the power to arrest the perpetrator for common assault as well as increasing the power of the courts in respect of the issuing of restraining orders. The Act also made it an offence for the accused to breach a non-molestation order7. This amendment to the Family Law Act 1996 can result in the perpetrator being imprisoned for up to 5 years8. The Family Law Act that was introduced in 1996 attempted to offer protection for victims of domestic violence by the inclusion of non-molestation orders9. Under s42 of the Act the court has the power to issue such an order to prevent the respondent from molesting the applicant. Under the same Act the legislation also attempted to protect the rights of the applicants to remain in the family home and have the offender removed from the home10. The Domestic Violence and Matrimonial Proceedings Act 1976 s2 empowers the police to be able to arrest anyone that breaches an injunction which has been issued with the aim of preventing the perpetrator from entering the home of the applicant or from the use of violence against the applicant11. The Protection from Harassment Act 1997 was designed to protect victims of domestic violence from being harassed by the accused12. This Act contains both criminal and civil resolutions to the harassment. In some instances the police will have the power to arrest any accused of harassment as defined by section 1 of the Act. Applicants can also obtain civil remedies for harassment, which can be useful if the harassment is such that the police do not have the requisite power to arrest the perpetrator13. Civil remedies can be used to obtain compensation in the form of damages or to get the court to issue an injunction against the perpetrator. The Housing Act 1996 has also addressed the issue of domestic violence with regard to the housing of those persons who are victims of domestic violence. Under s177 of this Act the Local Authority are asked to consider whether it is reasonable for the applicant to continue occupying the accommodation where there is likelihood that the applicant will be subjected to domestic violence. In these circumstances applicants are likely to be considered as being homeless as they are unable to return to the family home. The effect of this section of the Act makes it the responsibility of the Local Authority to provide assistance for those persons deemed to be homeless. The assistance can be in the form of advice or provision of housing and other items such as furniture or loans to assist in obtaining such items14. In the case of Maria above this would mean that if the courts decided that they did not have the power to insist on Homer being removed from the property the local authority would be under an obligation to provide suitable accommodation for her. If Maria and Homer were married the courts will often allow the spouse to remain in the family home regardless of whether the property has been registered in that person’s name or not15. The Matrimonial Proceedings and Property Act 1979 s37 entitles married partners to remain in the home even if the property was only registered in only one of the couple’s names. Under the 2004 Act mentioned above the police now have greater powers to enforce non-molestation orders and to bring criminal proceedings against those that due breach the orders. In the case of Maria this would mean that the court would be able to place sanctions on Homer to stop him coming near her. Maria might be able to get an injunction against Homer with an attached power of arrest. My advice to Maria would be to apply to the courts for a non-molestation order and also request that an occupation order be issued to forcibly remove Homer from the property. If the courts are convinced that Homer and Maria were in essence a couple then Homer is nor likely to be excluded for the family home. Bibliography Audit Commission, Best Value Performance Indicator No 153 , 2001 Annex A Cretney, S.M& Masson, J M, Principles of Family Law, 6th Ed, 1997, sweet & Maxwell Domestic Violence: A National Report, March 2005, The Home Office Edwards, S. (1989) Policing Domestic Violence, Sage: London. Gravells, N P, Land Law Text and Materials, 2nd Ed, 1999, Sweet & Maxwell HMIC/HMCPSI (2004) Her Majesty’s Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service, Inspectorate Report on Violence at Home (available at: http:// www.hmcpsi.gov.uk/reports/DomViol0104Rep.pdf (accessed 8 February 2008 Inns of Court School of Law, Family Law in Practice, 5th Ed, 2001, Oxford University Press Oldham, M¸ Statutes on Family Law, 10th Ed, 2002, Blackstone’s Radford, L. (2000) ‘Domestic violence’, in: M. May, E. Brunsden and R. Page (Eds.), Social Problems, Bristol: Policy Press Safety and Justice (2003) The Government’s Proposals on Domestic Violence, Cm. 5847. The Law Commission in their paper in July 2007 entitled 'Cohabitation: The Financial Consequences of Relationship Breakdown' Thomas, M, Statutes on Property Law, 8th Ed, 2001, Blackstone’s Walby, S. and Allen, J. (2004) Domestic Violence, Sexual Assault and Stalking: Findings from the British Crime Survey, (Home Office Research Study No. 276), London: Home Office. http://www.cps.gov.uk/legal/section3/chapter_c.html#_Toc44571258 Table of Cases Gissing v Gissing [1971] AC 886 Gull v Gull [2007] EWCA Civ 900; [2007] Fam. Law 1063; (2007) 104(36) L.S.G. 30 H v M ( Property: Beneficial Interest) [1992] 1 FLR Lloyds Bank Plc v Rosset [1991] 1 AC 107 P v P [2007] EWCA Civ 384; (2007) 104(17) L.S.G. 30; (2007) 151 S.J.L.B. 502 R. v Boulton [2007] EWCA Crim 942 Re JC (A Child) (Committal Proceedings) [2007] EWCA Civ 896; [2007] 3 F.C.R. 135; [2007] Fam. Law 1064 Table of Statutes Domestic Violence, Crime and Victims Act 2004 Family Law Act 1996 Housing Act 1996 s179 Law of Property Act 1925 Protection from Harassment Act 1997 Read More