False accusations of domestic violence: what can you do?

family law

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, family lawtackles 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 specializes 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.

Stowe Family Law Web Team

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10 comments

Dr Grumpy - January 27, 2017 at 6:05pm

So there is no way of clearing your name whatsoever?

Ruth Edwards - January 27, 2017 at 6:12pm

As a tier 1 Family judge. I have seen a rise of applications for non mols and allegations of domestic abuse.

Is it a possibility that the withdrawal of legal aid unless there has been DV might account for the rise?

Paul Apreda - January 30, 2017 at 9:13am

Hi Ruth – thank you for your very helpful comments on this issue. I’d be very happy to speak with you separately on the matters as I have been asked by the President’s office to submit some data around the rise in Non Molestation applications for a review that he is currently undertaking. My email is paul@fnf-bpm.org.uk I am the national Manager of the charity in Wales and a Trustee of the English charity. best wishes, Paul

Gary Martin - February 1, 2017 at 12:47pm

Probably, if police are not informed by say social services are (Of DV, even though nothing happened) what can you do?

Paul - January 27, 2017 at 6:38pm

The system is biased as it is always the woman who applies for a non-molestation order and she gets this as she has assistance from nationaldomesticviolencehelpline.org.uk
When it goes to court in 99% of cases, the non-molestation order is ordered by the Court in favour of the woman

The new way forward is for men to apply for a non-molestation order as soon as possible as it is the first one who applies gets it, this has been tried and tested as per mensadviceline.org.uk

Paul Apreda - January 27, 2017 at 7:31pm

Thank you so much for posting this. You have no idea how useful it will be.

I completely understand the logic behind this advice. I suspect I may even have indcated to some of our service users that they might consider something similar. It is however an absolute outrage that someone facing a false and malicious allegation should find it the least worst option to acquiesce in what amounts to an admittance.

The real value of this piece is in the way that it so clearl illustrates what is wrong with the Family Justice system. An innocent man faced with the loss of his children, his home and his finances is better off agreeing to an undertaking that he won’t abuse his former partner because to defend it might mean that he’s ‘found’ to have been an abuser and that will completely ruin him.

Truly remarkable and a sad indictment of British justice

Calder Hughes - January 27, 2017 at 9:46pm

The advice given here is absolutely awful.

If an undertaking is given, it can be used to satisfy the LASPO criteria and give the person making the allegations legal aid.

Why on earth would you say this is a sensible path to take if there is no abuse?

I smell a rat.

Stitchedup - January 29, 2017 at 1:13pm

Firstly, I would like to thank Theo and Stowe Family Law for acknowledging false allegations of domestic violence.

Sadly however, the article demonstrates what an impossible and unfair position many men find themselves in. I have to say Theo, I cannot agree to your statement “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”. Indeed you’ve pretty much negated this statement with your account of ex-parte orders i.e. “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 INJUCTION” So how has the court scrutinised the allegations and how can a judge “analyse in detail” without hearing the other side of the story?? He/she has, has he/she not, essentially accepted what the ex says?? At the follow-up hearing, the man is essentially guilty until proven innocent, the order is made, now prove your innocence. The burden is on the man to prove his innocence and refute the allegations whereas the burden should be on he accuser to prove her allegations. This is a complete reversal of how our justice system is meant to work and often puts a man in the impossible position of having to prove a negative. Also whilst it may appear to be in the interests of the man to have the follow-up hearing at the earliest opportunity to have the non-mol extinguished at the earliest opportunity, it works against him if the burden of proof lies with him and he has to obtain evidence to refute the allegations, such as police reports or the like, which can take months to obtain. In my case I was served an ex-parte non-mol on at approx. 20:30 on a Friday night with the follow-up hearing scheduled for 10:00AM Monday Morning, no time to get legal representation and prepare a robust refutation of the allegations. Non mols and undertakings often go beyond ordering the man not to “threaten, harass, intimidate or pester your ex”, they often include an order banning all forms of communication, so the very act of talking to your partner or texting about something completely benign can, and is, considered contempt of court and could attract a custodial sentence. So non-mols and undertakings do not stop a man from “doing something he shouldn’t be doing anyway” as many judges like to say; indeed if that’s all they did they would be superfluous as that’s what criminal law is for. The whole process is a complete disaster and puts men in an incredibly dangerous situation, undertakings are really no better, the only difference being that you don’t have a ruling against you that you have committed domestic violence, so most men effectively have a gun held to their head and are coerced into accepting an undertaking which, in itself, leaves them in an incredibly precarious situation. This is draconian behaviour by the courts and, imho, breaches several human rights including a right to a fair trial, freedom of speech and freedom of expression, a right to private family life and equality of arms.

Non mols are superfluous not just because of criminal law, but because they don’t stop murders. If a person has got to the stage they’re prepared to kill, they’ve gone past the point of caring about the consequences or the fact that a judge has put an order on them. They cause immense bad feeling, result in separated families becoming broken families so are not good for any children involved, and put men under extreme pressure and a calculated disadvantage during one of life’s most stressful events. They just make it easy to convict perfectly decent, hard working family men for something that in normal circumstances would not be considered unreasonable let alone criminal behaviour.

Enforcing these orders takes up scarce police resources and distracts attention from men, women and children that are in genuine mortal danger.

Stitchedup - January 30, 2017 at 9:34am

Correction, I was served the order at approximately 20:30 on the Thursday night. Not that it changes much.

Euphotic - January 29, 2017 at 1:57pm

Wow!

Our judge broke every proper legal policy described here. What does one do when the judge has no interest in allowing the Respondent show proof of the Applicant’s deceit of the court and dispel her false accusations?

The reason the applicant lied to the court was to become the sole resident parent so her physical violence and neglect would stop being reported; it worked perfectly. Local authorities gave up protecting our children the moment she refused to cooperate with them.

Any advice?

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