By Ned Gill
The Domestic Violence, Crime and Victims Act 2004 (DVCVA) makes significant changes to Part IV of the Family Law Act 1996 (FLA). Most importantly, the definitions of ‘associated persons’ and ‘cohabitants’ are widened and the breach of a non-molestation order is criminalised.
- Definitions Widened
Section 3 DVCVA extends the definition of cohabitants to include same-sex couples. This enables same-sex couples to apply for occupation orders under section 36 and 38 FLA. In addition same-sex couples can now apply for non-molestation orders by virtue of being a cohabitant rather than by being part of the same household as the respondent. This widened definition brings the rights of same-sex cohabitants into line with the rights of opposite-sex cohabitants.
Section 4 DVCVA creates a new category of ‘associated persons’ who ‘have or have had an intimate personal relationship with each other which is or was of significant duration’. At present there is no guidance as to what amounts to an ‘intimate personal relationship’ or a ‘significant duration’ and this will fall to be determined by the courts on a case by case basis.
- Breach of non-molestation order is criminalised
The most important change is the new criminal offence of breaching a non-molestation order, Section 1 DVCVA creates an “either way” offence with a maximum sentence on indictment of five years imprisonment. This came into force on 1st July 2007. The provisions do not apply to orders made before this date where a power of arrest has been attached. If there was no power of arrest, or the power of arrest has expired, the new provisions will apply.
A breach of a non-molestation order can still be punished as a contempt of court. ‘Double jeopardy’ is avoided to the extent that if there has been a criminal conviction the court cannot punish for contempt and vice versa.
Undertakings can continue to be made and any breach will remain a contempt of court and not a criminal offence. However, DVCVA amends section 46 FLA so that the court is now restricted from accepting an undertaking instead of making a non-molestation order where the respondent has used or threatened violence against the applicant or a relevant child.
The breach of an occupation order is not criminalised as a history of violence or molestation is not a prerequisite for the granting of an order. An important distinction therefore now exists following a breach of the two different types of orders. The court is now under a duty to consider making a non-molestation order whenever it considers making an occupation order.
These new provisions are likely to have an impact on public funding. At present it is unclear whether the Legal Services Commission will provide funding for civil contempt proceedings following a breach where alternative criminal proceedings can now be pursued by the Crown Prosecution Service.
