ASK A FAMILY LAWYER
Each week, Stowe Family Law solicitors answer readers’ questions on different legal issues. A senior solicitor based in our Harrogate office, Theo Hoppen, tackles this week’s topic.
“My ex and I are currently going through an acrimonious divorce and I was alarmed to hear that she has now accused me of abusing her and applied for a non-molestation order. I didn’t do anything of the kind. What are my options?”
Sadly, during the breakdown of a relationship it is sometimes the case that a spouse makes false allegations against the other. This can be for a variety of reasons: to gain a perceived advantage in a child contact dispute or a dispute in relation to financial matters or sometimes simply out of spite and a desire for revenge.
If you are accused of domestic violence it is important to bear in mind that any allegations will be subject to scrutiny by the court and no judge will simply accept what your ex says without analyzing in detail her allegations.
If your wife claims that she urgently needs a non-molestation order, the court may grant her a temporary order on a ‘without notice’ basis. This means that you will have not received any notification of your wife’s court application before the court grants the injunction. However, you will be given the opportunity to attend a court hearing within (usually) seven days of the order being granted and there ask the court to dismiss the injunction.
The most important first step is to take advice from a solicitor who specialises in family law and has experience of dealing with these types of cases. They will be able to advise you on your options.
As your wife has applied for a non-molestation order, she will have to provide a detailed statement setting out the allegations and the court will fix a date for a court hearing. You and your solicitor will review your wife’s statement and discuss this. Your solicitor will then be able to prepare a statement in response setting out your version of events. This is an important document as it will be reviewed by the judge before you and your ex attend court. This is not an opportunity to detail every argument and disagreement during your relationship – rather, the purpose of the statement is to refute the allegations made by your ex.
Once the statement has been prepared, this will be sent to the court and a copy will also be sent to your wife’s solicitor. You then have two options.
First, you can agree to provide an ‘undertaking’ stating that you will not threaten, harass, intimidate or pester your ex (or other such wording as appropriate). The wording of such an undertaking would mirror the wording in a non-molestation order. An undertaking is a legally binding promise to the court and, if you breach the undertaking, you will be in contempt of court and there will be serious consequences.
You may well ask why you should do this if you are not guilty of domestic violence. Crucially, the undertaking is provided on the basis that there is no admission by you that your ex’s allegations are true. The purpose of providing the undertaking is to avoid the stress and expense of a court hearing at which both you and your ex will have to give evidence and will be cross-examined by barristers about the alleged domestic violence. It is, in reality, a compromise solution. As there are no admissions, the court has not found them to be true and your ex cannot rely on them in any other court proceedings.
Secondly, you may wish to defend the allegations and ask the judge to make a ruling that the allegations are false. This would require you and your ex to attend court. The judge will consider your written statements and listen to the oral evidence you provided in court. He or she will then decide whether some or all of the allegation are true or false. This is of course a more “high-risk” strategy than providing an undertaking. Even if you believe the allegations are false, it may be the case that a judge does not agree with you, for some reason. You are then left with a ruling that you have committed domestic violence which could have a negative impact on any dispute regarding your children or in more extreme cases, on financial issues arising from your separation.
Theo advises on all aspects of family law including divorce and financial settlements, children issues, cohabitation disputes and pre-nuptial agreements. He has a particular interest in financial settlements on divorce which often include issues such as trusts, inherited wealth and business interests.
Theo prides himself on offering first-rate client care and support throughout what is often a difficult time.