Although most divorce and children applications are no longer covered by legal aid, it is still available if you are a victim, or at risk, of domestic violence. The false belief that no help is available is wrongly preventing victims of domestic violence from seeking legal aid to go to Court over financial issues or children cases.
When is Legal Aid Available?
You can still get legal aid (if you are on low income) and have limited capital when:-
- You are applying for a domestic violence injunction under Part IV of the Family Law Act 1996 – a Non Molestation or Occupation Order.
- You are applying for an Order under the Prevention or Harassment Act 2007.
- You are applying for Family Law Orders – divorce, financial application, children cases – and you have been a victim of domestic violence and the person who you are applying against is your abuser.
From the 22nd April 2014 the Government is abolishing the £75.00 fee to apply for a domestic violence injunction and if you qualify as being on a low income you will automatically get legal aid for this kind of application.
For the other family law applications, (divorce, money, children) you have to prove that you are victim or at risk of domestic violence to qualify, as well as being on a low income. This has been criticized as being restrictive but from the 22nd April 2014 the criteria are being widened so more victims will be able to apply for legal aid.
Evidence required in order to qualify for legal aid prior to 22nd April 2014:-
- An unspent conviction for domestic violence.
- A police caution for domestic violence in the last two years.
- On-going criminal proceedings for domestic violence.
- Domestic violence injunction granted within the past two years or an undertaking given by the abuser in the last two years.
- A letter from MARAC (Multi Agency Risk Assessment Conference) confirming that you have had a plan in place to protect you and any children in the last two years.
- Civil Court findings of domestic violence within the last two years.
- A letter or a report from a health professional confirming that the professional has examined you within the last two years and injuries were consistent with domestic abuse.
- A letter from a Social Services Department in England or Wales confirming that you have been assessed as being a victim or at risk of being a victim or domestic violence in the past two years.
- A letter or a report from a Domestic Violence Support Organisation in the UK confirming that you have been admitted to a Domestic Violence Refuge in the past two years (currently at least for 24 hours but this requirement will go on the 22nd April 2014) due to allegations of domestic abuse.
From the 22nd April 2014 the list will be extended to include:
- The other parties on police bail for a domestic violence offence (or child abuse offence) but funding may be withdrawn if no charges are ultimately brought.
- Entry to a refuge was refused due to there being insufficient accommodation.
- A Health Professional has referred you to a specialist domestic violence support service by a professional service.
- A relevant Domestic Violence Protection Notice or Order has been made pursuant to the Crime & Security Act 2010.
- A court order has been made binding the other party in connection with a domestic violence offence.
The police bail example and the referral by a health professional to Support Services will probably be the best route for victims to obtain funding.
What is Domestic Violence?
“any incident of threatening behaviour, violence or abuse, psychological, physical, sexual, financial or emotional (between adults who are or have been in a relationship together or between family members regardless of gender or sexuality”
Who can apply for an Injunction?
To apply for an injunction you need to be “associated” with the person you are seeking an injunction against. This means that you need to fall into one of the following categories:-
- (a) You are or were married to the perpetrator.
- (b) You are or were in a civil partnership with the perpetrator.
- (c) You are or were engaged to marry or enter into a civil partnership with the perpetrator.
- (d) You are or were living with the perpetrator as husband and wife (or the equivalent within the same sex relationship).
- (e) You live together, or have lived together, but not because one of you is the other’s tenant, employee, boarder or lodger.
- (f) You are related to the perpetrator (she/he is a member of your family).
- (g) You have a child together.
- (h) You have or have had parental responsibility for the same child.
- (i) You are parties to the same Family Proceedings in court.
- (j) You and the perpetrator have or have had a personal relationship with each other which is or was of significant duration (for example) you have had a sexual relationship for at least six months.
So it does not have to be a partner or former partner as an abuser. Other family members can also be caught by the legislation and have enforceable injunctions made against them.
Domestic Abuse Remedies
The courts are far more willing than they once were to make orders in relation to domestic abuse, and it is no longer necessary to show physical violence. Much domestic abuse is much more subtle than that, involving threats, manipulation, and exploitation and belittling the victim.
One effective way to obtain protection is to get the police to ensure that a domestic violence conviction is accompanied by A Restraining Order which will mean that you will not need to bother with separate proceedings for an Injunction.
If this there is not a prosecution for Domestic Violence, A Restraining Order can be made even if there is not a conviction, then A Non-Molestation Order can protect you and any children under 18 years from threats, violence, intimidation and pestering. It is now a criminal offence to breach an Injunction so if the abuser does so he can be reported to the police and arrested.
Another option available is an Occupation Order. This can regulate occupation of the home, so even if your abuser has a legal right to occupy as the home owner or tenant/joint tenant, the court can exclude him or her to allow you and your children to remain in the home. The court will look at the needs of both parties and the ability that they have to obtain alternate accommodation, but this is a great help to women and children who would otherwise have nowhere to go in a relationship breakdown which also involved domestic abuse.
If you are constantly being harassed by your abuser, whether by text or phone or otherwise, a solution may be an order under the Protection from Harassment Act 2007. This is an Act which crosses the Criminal & Civil Jurisdictions so it may be possible to ask the police to take action to prevent harassment instead of issuing civil proceedings.
Other ways to fund Family Law Applications:
If you are not eligible on financial grounds for legal aid you may want to consider some of the new ways or funding representation in family law applications.
- Fixed price services.
- “Unbundled” Services where you pay in advance a fixed fee for specific pieces of advice or a court appearance.
- Loans, whether formal family loans or commercial ones – more usual in cases where there are substantial financial assets to be distributed.
For more information please contact us.