Family
Frequently Asked Questions
Do I need a solicitor if I decide I need a divorce?
Though you will find ‘do-it-yourself’ divorces available, we would not advise you taking this upon yourself unless your situation is very straightforward. Our experience is that they seldom, if ever, are. There are three specific situations in which you will definitely need the help and legal expertise of a solicitor:
How long will it take?
These are typical time periods but there is large variation:
- Divorce proceedings - 5 to 8 months
- Financial proceedings – 6 to 12 months
- Children proceedings – 6 to 9 months
- Injunction proceedings – Order within 2 days, Total proceedings 3-4 months.
We aim to deal with your matters as quickly and efficiently as possible. There are certain time frames that are built into the process and which must be complied with. The speed at which documents are processed and hearings scheduled will be influenced by the Courts and the other party (the other person involved in the divorce and their solicitors). In every event, we will have your interests at heart, will keep you up to date as to where things are and will endeavour to ensure that the process is as painless as possible.
What should I bring with me when I first come to see you?
It helps considerably if you can bring with you any papers relating to your finances. This helps prevent any unnecessary delay if any immediate action is needed. It also helps the solicitor advise more accurately on the range of options available to you and what may be achieved in terms of a financial settlement. The sort of papers we would advise you to bring would be details of your income and assets, outgoings and liabilities, as well as any proof of benefits you have been receiving. We would also suggest that you bring your marriage certificate.
Do you give free first interviews?
No. The cost of the initial interview is fixed. This is an extremely important meeting for you and we would not feel able to give you the best possible service without spending a significant amount of time considering your situation, your issues and your goals. We also report everything back to you so that you can refer back to any advice we gave you. If you would like to know any more about the first meeting please feel free to contact us on (01752) 664444.
Can I bring my children to our meetings?
From experience we know that many of our meetings with you could emotionally difficult or complicated and requiring a lot of attention to detail. For us to be able to support you in the best way possible it is important that we help you to feel that you have space and time within these meetings. For some this is possible to achieve with their children in the meeting. For others it is not so easy. It is important for you to decide which option is going to be best for you. We also appreciate that it’s not always going to be possible for you to arrange childcare even if you would prefer to have it. And, with this in mind, we are able to provide toys and books to help amuse them whilst we are working together (for the under 5’s). However, again based on experience, many of the younger children find comfort more readily in their own toys in the ‘new’ surroundings.
We would consider it inappropriate to allow into the meeting a child who could understand the nature of the discussions especially where they involve the family’s future, changing living arrangements etc.
Will I have to go to Court at any stage?
If either of you decides to contest the divorce then, yes. We would always advise that if you are intending to go ahead with proceedings that you attend at Court whenever it is necessary. It ensures that you are able to be party to any negotiations and answer any queries the Judge may have.
If on the other hand the divorce is ‘undefended’ i.e. you both agree to it, then there is no need for either of you to go to court.
I’m thinking about giving you a call, what should I be prepared to tell you?
The first phone call is often the most difficult to make. However, sometimes it can help to spend some time clarifying in your own mind what it is you need to say. From our point of view it helps considerably if you can consider and be prepared to say something about the following in your first contact with us:
- - Divorce
- - A children matter
- - An injunction (domestic violence issue)
- - Financial issue (relating to divorce or cohabitation)
I want to apply for a divorce, what do I need to do?
If you are experiencing any difficulties in your marriage we would strongly advise you to take some time to consider how the assistance of a third party may benefit and support you the most. There are a range of counseling options available where you can both explore the reasons for your feeling this way e.g. RELATE www.relate.org.uk
If, after some time talking with a counselor, you reach the conclusion that separation is the best course of action, then go and see a solicitor who can discuss your options with you e.g. divorce proceedings, separation agreements and the possibility of Mediation, it may be worth considering ‘mediation’ as a way to resolve matters.
I don’t have the money to pay for a divorce, can I get any help towards it?
In certain circumstances it is possible to access ‘Public Funding’. During the initial meeting or a follow-up meeting your solicitor will assess your financial position to see whether you would be able to make an Application for Public Funding (this used to be called Legal Aid). At this same meeting your solicitor will discuss with you the implications of being granted Public Funding.
As one half of the married couple, what am I legally entitled to?
Sadly it is not as simple as that. There is no set formula to determine what you are entitled to if your marriage should break up. Many factors will be taken into account. The Court will look at your needs, the resources available to you, contributions you have made to the marriage and the welfare of the family. All the circumstances of each individual case will be carefully considered.
Who is the Children & Family Adviser and what do they do?
The Children & Family Adviser is an Officer of the Court. They work as an independent expert whose aim it is to listen and assist the parties in reaching an agreement. He will also make recommendations to the Court.
I’m worried about my children’s safety and my own, what can I do?
If you have been physically, sexually, financially or psychologically harmed by a person with whom you have had a relationship. You should contact us to consider the possibility of applying to Court for an Order to protect you or your children and to remove the perpetrator from the household.
If my husband/wife and I change our minds at any stage during the process can we stop the divorce going through?
Yes, the Petition can be withdrawn if there is a reconciliation.
Care Proceedings
The following procedure may apply where you are involved with Social Services because Social Services consider your child has been significantly harmed or is at risk of significant harm.
Step 1 - The Local Authority apply for an Emergency Protection Order
Where there is a risk of imminent harm to a child in a situation considered to be an emergency, the Local Authority can apply for an Emergency Protection Order at Court, with or without you in attendance. If granted, the Emergency Protection Order allows the Local Authority to take the child into their care for a limited period of time. This can be extended for a further limited period of time.
By the end of the second period of time, the Local Authority must either return the child or apply for an Interim Care Order.
Step 2 - Interim Care Order
If the Local Authority decides at a Child Protection Case Conference to apply for an Interim Care Order, an application will be made setting a date and time for the Court to consider the case.
If the Interim Care Order is made, the Court will also either make Directions (steps ordered by the Court to move the case forward and usually to be complied with before the next hearing) or orders a Directions Appointment to be listed where a date and time is set for an appointment to deal with directions.
Step 3 – The Directions Appointment
The Court will be asked to make Directions dealing with:
1. Preparation and circulation of Statements and
2. the need for expert evidence (such as Psychiatrist’s or Psychologist’s Report) and
3. to list the matter for a further hearing
Step 4 – Further Directions Appointment
Once all the necessary reports have been obtained (and this can be a lengthy and detailed process) a further Directions Appointment will take place. This is also known as a “Pre-Trial Review”.
Step 5 – The Final Hearing
The Court will be asked to consider whether Care or Supervision Orders should be made in favour of the Local Authority. The Local Authority will have to then circulate a Care Plan setting out the details of how the child will be cared for under that Plan.
The Judge must consider whether to make a Care Order based upon what is known as “Threshold Criteria” and the Welfare Checklist.
You should note that in some cases the Local Authority will go on to make an application either for an Adoption Order or an Order freeing a child for adoption, where it has been decided by the Local Authority and approved by a Judge that an adoption should take place www.baaf.org.uk
Disputes relating to the care of children
1. Residence – with whom a child should live
2. Contact – with the non-residence parent/other relatives
Step 1 – Instruct your solicitor
Meet with your solicitor to discuss whether to attempt to reach an agreement by exchanging letters or whether an immediate application to Court is necessary. Your solicitor will then prepare an application on your behalf to be sent to the Court.
Step 2 – Send Application at Court
The Court will set the date and time for a hearing, known as a “Directions Appointment”, which both parties must attend.
Step 3 – Attend Court for Directions Appointment
In Plymouth there is usually a CAFCASS Officer who is available to carry out a short mediation meeting between the parties to see if agreement can be reached. If agreement is reached an Order can be made finalising the matter at that stage. If agreement cannot be reached, the Court will be asked to give Directions upon whether a CAFCASS Report should be obtained regarding the welfare of the children, whether any other expert evidence needs to be prepared and circulated and when the next hearing will take place. Alternatively sometimes if some contact is agreed the Judge adjourns the case for a period to see if contact is successful and an agreement can evolve.
Step 4 – The CAFCASS Report
The CAFCASS Officer will prepare and circulate a report setting out his or her recommendations to the Court in relation to the issue the Court is dealing with. S/he will meet the parties and will obtain school and medical reports to assist s/he with her/his report.
Step 5 – The next Directions Appointment
The Court will consider the CAFCASS Report. If no agreement is reached the Court will set a date and time for a final hearing.
Step 6 – The Final Hearing
The Judge will be asked to consider the evidence of the parties, the CAFCASS Officer and any other experts involved and will make a decision on the issues based upon a variety of factors set down by law.
Note
Many issues can arise in children proceedings which means that the above procedure may be departed from. This would include, for example, where there are allegations of domestic violence. In this case further time will be needed for an expert to report on these issues and this may lead to additional Court hearings
Entitled to Financial Help?
Step One: Are you single or do you have a partner?
Work out what your income and capital are if you are single. If you have a partner, you need to work out your total income and capital.
Step Two: Do you receive Income Support or Jobseekers’ Allowance?
If yes, then you are entitled to ‘Legal Help & Help at Court’ under the Legal Services Commission scheme for family work undertaken by our team.
If not, then the following calculation applies.
Step Three: Calculation for those not in receipt of Income Support or Jobseekers’ Allowance
1. Do you have capital of more than £3,000 (This includes equity in the home, savings, investments, valuable items and other monies. This does NOT include monies which are in dispute, general furniture and effects, clothes and tools of trade)? If it is more than £3,000 then you are not entitled to help.
2. If the capital is less than £3,000 then you need to consider your income. You need to calculate your total income (‘aggregate gross’) from all sources including Child Benefit, Welfare Benefits, maintenance, interest and so on.
3. If the total income does not exceed £2,000 then certain deductions can be applied:
- - Tax and National Insurance per month
- - Travel allowance for employment expenses of £45
- - Child care costs due to work
- - Certain disregarded State Benefits (including Disability Living Allowance, Attendance Allowance, Invalid Care Allowance, Council Tax Benefit, Housing Benefit and Social Fund Payments)
- - Mortgage/rent. It you have no dependents then the total sum which can be allowed for is up to £545. With dependents it exceeds this amount.
- - Do you have a partner? If so, deduct £131.25.
- - Do you have children who are dependent, aged 16 and over? If yes, deduct £146.65 for every child over this age.
- - Do you have children under the age of 15 who are dependent? If yes, deduct £143.18 for each child under that age.
4. Calculate the total deductions that apply and take these away from your monthly income. Does this leave you with a total income that exceeds £601 per calendar month?
If yes, then you are not eligible for help. You may however, be entitled to apply for ‘Public Funding Certificate’. It would require you to make a contribution to the legal costs.
5. If no, then you will be able to sign a ‘Legal Help & Help at Court Scheme’ Form.
You will then be advised that under the conditions laid out in that form that we will be able to do up to £500 worth of work for you (plus VAT). However, it will not cover representation at Court.
Step Four: The influence of money / property gained as a result of the case
If you gain money or property to a value in excess of £3,000 as a result of the case being heard then you will have to pay the costs of the work carried out under the Form, from that money / property.
If you receive less than £3,000 then you won’t need to pay any legal fees.
When the case is purely focusing on children, and property or money are not looking to be gained, then you will not have to pay for the legal costs.
Financial Relief - First Meeting
A Checklist of what to bring with you when you come to see us.
Assets
1. Evidence of any Child Maintenance Assessment made for or against you.
2. Any documents you may have with regard to the ownership of any properties you own, including your main place of residence.
3. A copy of any valuation you may have of the matrimonial home or any other property you may own.
4. Details of your mortgage, including the most recent statement, and details of the type of mortgage.
5. Details of all bank, building society, and National Savings accounts you hold, including the last 12 months statements for each account.
6. Details of any PEPs, TESSAs, and ISAs.
7. Details of all stocks and gilts or other quoted securities.
8. Details of all life insurance policies, and their surrender values.
9. Details of any National Saving Certificates.
10. Details of any National Savings Bonds.
11. Details of any money owed to you, including sums owed in directors or partnership accounts.
12. Details of all cash savings in excess of £300.
13. Details of all personal belongings over £500, including cars and jewellery, furniture and household belongings.
14. Details of any other assets (e,g. unit trusts, investment trusts, commodities etc.)
Liabilities:
15. Details of any liabilities including mortgages, credit cards, store cards, bank loans, hire purchase agreements, overdrafts and loans from family and friends.
16. Will you have to pay Capital Gains Tax on the sale of any realisable assets.
Pensions:
17. Details of any pensions you may have including SERPS and State Pensions, including the provider, the type of plan, the Cash Equivalent transfer value, the lump sum payable on retirement or death, the monthly pension with and without taking a lump sum, spouses benefits.
Income:
18. Details of earned income from Employment in the last and current financial year including your last three payslips and P60 for the most recently completed financial year.
19. Details of any other income earned, including benefits in kind, perks etc.
20. Details of the annual net profits or loss for the last two accounting years, your share of this figure, and tax payable to date.
21. Details of investment income in the last and current financial year.
22. Details of any state benefits that you receive.
Outqoings:
23. Your current outgoings from all sources (including mortgage repayments, insurances, gas, electricity, water, council tax, car expenses, TV licence etc).
24. Your future income needs.
25. The current outgoings for any children who live with you.
26. Your future income needs for any children.
27. Your future capital needs.
Your partners details:
28. Details of the income and assets of any person with whom you live.
29. Details so far as they are available of the assets and income of your Husband or Wife.
Personal Protection
What is the process for obtaining an Order for your personal protection (Domestic Violence)?
If you have been a victim of domestic violence, you may apply for Orders to protect you or your children personally and to remove the perpetrator of the violence from the home. These are respectively known as “Non-molestation Orders” and “Occupation Orders”.
Step 1 - Instruct your solicitor
Where there has been domestic violence or there is imminent risk of domestic violence, you should instruct a solicitor as a matter of urgency.
Step 2 – Gathering Information
The solicitor will obtain details from you of the domestic violence that has occurred. Where there is imminent risk of harm to you or your child, an emergency application to Court should be considered.
Step 3 – Preparing sworn Statement & Application
The sworn Statement and application will contain details regarding any incidents and history that has occurred.
Step 4 – Attend Court and request emergency hearing on that day
The solicitor will ask the Court staff if you can be heard by a District Judge to ask for an Order to be made, in the absence of the other party and without notifying the other party. If the Judge grants such an Order, the Order will be served by a process server on the perpetrator. Orders by Judges on an emergency basis are more often Non-molestation Orders than Occupation Orders.
If the Judge makes either a Non-molestation Order or Occupation Order, he will then list the case for a further Directions Appointment or hearing within seven to fourteen days.
All of the documentation filed and Orders made must be served personally handed to the perpetrator by a process server.
Step 5 – The first hearing with parties in attendance
This will either be:
- a. A Directions Appointment so that the Court can order the perpetrator to file a Statement and then list the matter for a full hearing of the issues or
- b. A full hearing.
Step 6 – Final hearing
The parties will attend Court for the Court to make a final decision as to whether the Non-molestation Order should stand and, if the perpetrator is still in occupation of the property, as to whether an Occupation Order should be made removing the perpetrator from the property.
At any time during these proceedings it is possible to come to an agreement with the perpetrator by which they will give a formal promise to the Court known as “an undertaking” not to threaten violence, use violence, harass, pester or otherwise intimidate you or your child not to encourage anyone else to do so. It is also possible to agree that the perpetrator will leave the property.
If there has been violence or a threat of violence against you the Judge may consider actually obtaining a “Power of Arrest” to the Order by which, if there is a further incident, the Police can arrest the perpetrator and bring them straight into Court.
It is important to note in any situation where you or a child are in risk of harm or have suffered harm, your first step should be to contact the Police for immediate protection.
What is the process of divorce?
The divorce process need only take about six to eight months from the time the papers are sent to Court to the time when the Decree Absolute (final decree) is granted. However, it can take considerably longer depending on how quickly each of the parties deal with paperwork. It is important to note that sorting out the financial matters can take longer than the actual divorce. You can get your Decree Absolute and be free to remarry, but still have not sorted out a financial settlement. In certain circumstances it is advisable to delay your application for Decree Absolute until the finances have been dealt with by the Court.
Step One: You phone us up…
Your call will be taken either by a secretary or a lawyer. Our team are all very experienced in dealing with this sensitive issue and they will be able to give you the advice and support you need. We will arrange for a convenient time for us to meet up.
Step Two: At our first meeting we will:
1. Find out exactly what your current situation is
2. Give you information regarding the law, the process, costs and practical issues so that you can make an informed decision as to how to go forward. It is likely to be quite a lengthy meeting and it will help if you could bring the any information and documentation relating to your finances e.g. wage slips, P60, bank and building society statements, evidence of any state benefits
We will send a note of what we discussed and the advice we gave you.
Step Three: Starting divorce proceedings… or Responding to a Petition…
There is one ground for divorce and that is that the marriage has irretrievably broken down. This needs to be supported by one or more of the following facts:
1. Your spouse has committed adultery
2. Your spouse has behaved unreasonably
3. Two years’ desertion by your spouse
4 Two years’ separation with consent of both parties
5. Five years’ separation
If you are the person initiating the divorce (the petitioner) we will prepare and send a Petition and other necessary papers to the Court. The papers are then sent by the Court to your spouse (the Respondent).
If you are the Respondent you have seven days from receipt of the papers to send back to the Court the Acknowledgement of Service (a form provided by the Court) stating whether you object to divorce proceedings.
Step Four: Preparing an Affidavit…Applying for ‘Decree Nisi’
As long as the Respondent does not object to divorce proceedings the Court sends to the Petitioner’s solicitors a copy of the Acknowledgement of Service. Those solicitors then prepare and send to the Court an application for Decree Nisi which is the first of two divorce decrees (Orders). An Affidavit in Support of Petition forms part of the application and is a document sworn by the Petitioner confirming that the Petition is accurate and formally requesting Decree Nisi.
There may be strategic reasons to delay the application.
N.B. If the Respondent indicates on the Acknowledgement of Service that he or she intends to defend the proceedings he or she must file a Reply to the Petition within twenty-eight days of filing the Acknowledgement of Service. We would then anticipate that there will be a Hearing to deal with the Respondent’s defence.
Step Five: Await Decree Nisi
The Court confirm when Decree Nisi will be pronounced. Neither the parties nor thesolicitors need attend the hearing.
Step Six: Decree Absolute
Once Decree Nisi has been pronounced the Petitioner can apply for Decree Absolute six weeks and one day thereafter. The Court sends to each party the Decree Absolute at which point the parties are divorced. There may be ongoing issues in regard to finances and children.
Resolving Financial Matters
What is the process for resolving financial matters?
This process can take far longer than the actual process of getting divorced. You can, in fact, have received your Decree Absolute and therefore be divorced, and still not have reached a financial settlement.
Step One: Gathering, checking and exchanging information.
The first step is for you and your spouse each to complete a Form E. These will then be exchanged between you. Once you have had a chance to see your partner’s Form E, setting out their financial position, you are then in a position to address any queries you may have about the information given in the Form E. These queries are then put to your partner to answer. You study your spouses form E and prepare a Questionnaire setting out any queries or discrepancies you wish to be dealt with.
Step Two: Negotiate…or go to Court
Once you are satisfied that you know your spouse’s full financial position negotiations may take place to reach a financial agreement without the need to go to Court.
If no agreement can be reached or one of you decides that you are not satisfied with the financial information given, we can begin proceedings by lodging (sending) an application at Court.
Step Three: The Court actions
The Court will require you to send to the other party and to the Court your Form E (they may have already sent their Form E to the other side but they will still need to send a copy to the Court). The Court also sets a date for the first hearing — the First Directions Appointment.
Step Four: Preparation for Court
You and your partner are then given an opportunity to prepare a questionnaire with queries about the other party’s Form E.
Step Five: The First Directions Appointment
The First Directions Appointment then takes place. This is the first of (usually) three Court appointments to resolve a financial dispute between a separating couple. This hearing deals with any remaining queries either party has about the assets of the other or, for instance, the valuation of any asset or property. A timetable is set for clearing up these queries before the Financial Dispute Resolution Hearing.
Step Six: Another opportunity to negotiate
Before the next hearing there is the possibility for further negotiations to reach a financial settlement between solicitors.
Step Seven: The Financial Dispute Resolution
There is then a Financial Dispute Resolution hearing approximately two to three months after the First Directions Appointment. This is usually the second of three Court appointments in a financial dispute. The District Judge will look at all of the assets shown in each parties’ Forms E and any other documentation (e.g. up to date valuations) that have been circulated since the Forms E have been prepared. The District Judge may attempt to mediate between the parties to reach a settlement. If no agreement is reached he may give an indication as to what final order he would expect to be made. The District Judge will also order a final hearing to take place two to four months later.
This District Judge will not be the Judge at the final hearing.
Step Eight: Another opportunity for negotiation
It is possible for further negotiations to take place before the final hearing.
Step Nine: The Final Hearing
If no financial agreement is reached there will be a further final hearing. Experts (e.g. valuers, accountants may be called to Court to give evidence). If there is no last minute agreement between yourself and your spouse the District Judge will make a final Order dealing with all the finances. In other words, the District Judge or Judge will have the final say.
You are each likely to be questioned about the finances
What to bring to the first meeting
What we will go through with you during your first meeting:
You may find it helpful to print the checklist below and complete as much as you can before you come in and see us. If not, it will give you a good idea as to the type of information we will need to be able to find out what your situation is, what your goals are and what options you have available to you to consider.
1. Your details:
- Your name
- Current address
- Same as family home (if not, please state)?
- Occupation
- Tel no: work
- Home
- Contact
- National Insurance number
- Date of birth
2. Your Partners Details:
- Partners name
- Partners address (if different to your own)
- Partners occupation
- Partners date of birth
- Partners solicitors
3. Relationships:
- Names of relevant others – involved in your current situation
- Have you formed a new relationship/ or are you forming a new relationship?
- If so, please state name & address, any intention to cohabit
- Has spouse formed new relationship/or are they forming a new relationship?
- If so name & address, intention to cohabit
4. Children:
- Names and dates of birth:
- Living arrangements/schools & contact (orders or agreements):
5. Marriage/co-habitation:
- Date/place of marriage/co-habitation:
- Any previous court proceedings/current proceedings:
- When did relationship begin?
- Date of last separation:
- Reasons for breakdown:
- Prospect of reconciliation:
- Health of the parties involved and children:
Safety & Security with Domestic Violence
How to achieve ‘Safety and Security’ in a family situation that involves Domestic Violence’?
Step One: First things first.
The most important step is to secure your safety, and that of any children that may be involved. Options available to you include contacting the police (999) or the Devon & Cornwall Constabulary Domestic Violence Unit direct on 24-hour helpline (08705 777444). Their website address is www.devon-cornwall.police.uk They may also include arranging to stay with friends, family or perhaps enlisting the help of a Refuge or if you are female, Women’s Aid (telephone number: 01752 562286).
The next step would be to contact a Solicitor in order to discuss the options available to you.
Step Two: Exploring the options
Making an application for an injunction (link to glossary) is not the only option. For example, a warning letter sent to the perpetrator may have the desired effect. Also the criminal courts may be a more appropriate avenue.
In order to achieve the best way forward for you, your legal representative will need to know exactly what has happened and the history of your relationship with the perpetrator. This information will need to include any previous incidents, arrests, cautions, court proceedings etc. You may find it easier to write down this information prior to meeting with your legal representative.
Step Three: Considering the Courts Powers
Under the Family Law Act 1996, the following types of orders (link to glossary) are available:
(i) Non-Molestation Order – this is for the protection of you and if necessary your children. The Order can cover not only violence but also the threat of violence, intimidation, or harassment and can also be drafted to prohibit the perpetrator encouraging or asking anyone else to carry out the ‘molestation’ on their behalf.
(ii) Occupation Order – These orders tend to be more complex as they deal with the persons’ rights to occupy the home. They can exclude one party from the home and even specify that one party is not to come within a specified distance of the home either.
The Protection from Harassment Act 1997 is a relatively new piece of legislation. In certain circumstances, a person may not come within the ambit of the Domestic Violence legislation and the Protection from Harassment Act was designed to try assist in those circumstances.
What ever your situation is, your legal representative will work with you in a supportive way to find the most appropriate way forward for you.
Step Four: Off to Court?
In urgent cases it is possible for an emergency application (link to glossary) to be made to the Court. That application would be made on an ‘ex parte’ basis, which means that the perpetrator would not be given any notice of that first hearing and would therefore not be in attendance. The Court would have to consider whether it would be just to make an Order in those circumstances. An urgent case would be one such as:
(i) Any risk of significant harm to the applicant or children if the order is not immediately made; or
(ii) Whether the applicant is likely to be put off or prevented from making the application if the order is not immediately made; or
(iii) If there is reason to believe that the perpetrator is evading service of documentation and that delay in serving documentation will seriously prejudice the applicant or children.
If the Court decides it is appropriate to make an order on an ‘ex parte’ basis, that Order will not be in force until the written Order is served on the perpetrator. The Court will also set a date for a hearing, usually within the following 7 to 14 days. It is usual for any ‘ex parte’ order that is made to be drafted to expire shortly after or at that hearing. The perpetrator will then have notice of that hearing when they are served with the documentation and will have the opportunity to attend that hearing and present their case to the Court. It will be for the Court to decide whether it is appropriate for the ‘ex parte’ order to be extended and for how long. Typically they may last for three to six months.
If the case does not fall into the categories for being urgent, then the application would be ‘on notice’, that is to say the perpetrator will be told that the hearing is taking place and will therefore be able to attend and present their case to the Court. It will then be for the Court to decide whether it is appropriate for an Order to be made and for how long.
Step Five: What is an Undertaking?
At Court it is possible for the Judge to make one or more of the above Orders. Alternatively the Court may accept ‘undertakings’. An undertaking would involve the perpetrator making a promise to the Court, which is similar to the proposed Order. This would avoid an Order being made against the perpetrator and may be more appropriate in certain circumstances.
Step Six: How can the Order or Undertaking be enforced?
A breach of an Order or Undertaking is considered contempt of Court and is punishable by, for example, a fine or imprisonment. Sometimes a Court may attach a ‘power of arrest’ to an Order it makes when it is felt that the applicant and children may not be adequately protected without such a power. The effect of the power of arrest is that the Police can arrest the perpetrator if they have reasonable cause to suspect them of being in breach of the Order. Once arrested under this power, the perpetrator must be brought before the Courts within 24 hours.
If no power of arrest was attached to the original Order, whoever originally applied for the Order could then apply to the Court for a warrant of arrest to be added.