Legal Options

Everyone has a right to safety and there are a number of rights and entitlements Under the Domestic Violence Act 2018 that can support a woman to access legal safety for herself and her children. Some of these options have conditions attached. It is for this reason that we always advise that you seek information and legal advice before pursuing a legal option. This can mean contacting a Domestic Violence Service; a Free Legal Advice Clinic (FLAC) or a solicitor. Information on Safety Orders, Protection Orders and Barring Orders can also be obtained from Citizens

NB: for all orders the Court can also now include a prohibition on following or communicating (including by electronic means) with the applicant or the dependent person /child. All partners in an intimate relationship are eligible for Safety and Protection orders, with no need of cohabitation (that you have been living together).

• Protection Order

This is a temporary order intended to keep you safe until you can go into court for a longer-term order, such as a Barring or Safety order.

• Interim Barring Order

These also are temporary orders directing the perpetrator to leave the family home, given where there is extreme risk for the victim. The difference between them is in relation to who owns the property – if the victim doesn’t have ownership rights, then they need to apply for the Emergency Barring Order. A court hearing for a Safety or Barring Order has to be heard within eight working days.

• Emergency Barring Order

EBO provide short term emergency protection to partners who are living together but who do not have an equal or greater interest in the property. These orders will only last for 8 days

• Barring Order

A Barring order is an order which requires the violent person to leave the family home which can be granted for up to 3 years. To get a Barring order, you must attend a court hearing. If you are married and your spouse is violent towards you or your children, you can get an order no matter how long you have lived together. There is no minimum period of cohabitation required for couples who live together and who satisfy the property test (which means that the applicant must have an equal or greater interest in the property than the respondent).

• Safety Order

A Safety order is an order which does not require the violent person to leave the family home. It can last up to 5 years. As with a Barring order, you must attend a court hearing and, if you are married, you can get an order no matter how long you have lived together. If you are not married, you can get a Safety order if you have been living together for 6 out of the previous 12 months.

Coercive control:
This is a new offence which criminalizes psychological abuse/ controlling and coercive behaviour in an intimate relationship that causes fear of violence, or serious alarm or distress that has a substantial adverse. This pattern of behaviour creates domination of a person’s life; using tactics like violence, intimidation, degradation, isolation and control; and the presence of ongoing oppressive behavior impact on a person’s day-to-day activities.

Forced marriage
Forced marriage is a new criminal offence, including removing a person from Ireland for the purpose of them being forcibly married. The current legislation that enables people under 18 to marry will be repealed.

Guardianship, custody and access

• Child Custody Orders
Custody is the day to day care and control of the child and custody orders apply to children under the age of 18. You should apply for a custody order when you apply for a protection order. The judge decides which parent the child will live with. If you are not married to the father of your child, it is important to note that an unmarried father does not have automatic guardianship rights. He must apply to the court to get these rights.

• Child Contact Orders
Child contact is usually known as access. It is the right to see and communicate with a child. When you have custody of your child, the other parent will usually be given access, unless there is a proven risk to the child, and even then, supervised access may be given. Access can be arranged in different ways.

• Maintenance Order
A maintenance order is designed to give financial support for you and your children. You do not have to be living apart or intending to separate. If your spouse/partner is unemployed, you can still apply for maintenance as a maintenance order may be important for applying for social welfare.

• Legal Separation
A legal separation is a written contract through which married couples agree to separate. It covers maintenance, custody of children, ownership and occupation of the family home. In a legal separation the spouses can decide the terms of separation rather than have the terms imposed by the court and usually a solicitor or mediator can help negotiate an agreement. However, when there has been domestic violence and abuse, it is unlikely that the perpetrator will be concerned about the best interests of the victim and negotiating a fair agreement will be difficult.
In this case a judicial separation may be necessary, and a judge decides on these issues.

To apply for a Barring or Safety Order you must go to your local District Court Office. If you need a Protection order or an Interim Barring order the District Court Judge will usually hear your case on the day you make the application for a Barring order or Safety order. If you do not want a Protection order or an Interim Barring order immediately, you can seek one at any time before your case for a Barring or Safety order is heard.

Criminal Law
Whether you live with an abusive person or not, you are entitled to protection under the law. Breach of court orders, threats to kill or cause serious harm, criminal damage, harassment, assault, assault causing harm, assault causing serious harm, rape, sexual assault, abduction of children and false imprisonment are crimes.

If you are at risk of any crimes, you can contact the Gardaí for help.
• Garda Stations Select Cork West
• Garda handbook page 29
• Citizens Information Website

Legal Representation
Private Solicitors tend to specialise in different areas of law, and while they will all have knowledge of family law, some will be more experienced than others. Before you decide to use the services of a private solicitor, it is worthwhile asking them about this and about the fees you are likely to pay.

Legal Aid
To qualify for Legal Aid representation, (low cost) your income must be below a certain level. Contact them directly for up to date information – Legal Aid website. Once you qualify for Legal Aid, you can only be represented for the matter you applied for. You cannot add on another application later. As Protection, Barring, and Safety Orders are emergency orders, once you qualify for Legal Aid, you should be granted legal representation quickly. Custody, Access and Maintenance Orders are not deemed emergencies, so you will go on a waiting list for a solicitor. Being granted representation for a Separation can take a year or more. If your partner is already a client of the Legal Aid office and there is only one in your area, they cannot also represent you, so you will have to apply to Legal Aid in another area. Free Legal advice is given by FLAC.

Legal Aid made the decision to disregard the financial fee on application for Domestic Violence Orders in the District court. All applicants for legal aid still need to meet the eligibility criteria and satisfy a means test. Other proceedings (e.g.: access, maintenance, separation) are not included in this exemption.

Court Accompaniment
West Cork Women Against Violence Project may be able to accompany you to court. Please see our Court Accompaniment section for information on this.

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Violence against women is unacceptable!

We value all the help and support that we receive from organisations and individuals, and your financial support, whatever the amount, will help us to help those suffering domestic abuse. We all believe that violence against women is unacceptable.
Freephone helpline: 1800 203 136