The End of Domestic Violence
| Date | 01 September 2006 |
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00609.x |
| Author | Helen Reece |
| Published date | 01 September 2006 |
The End of Domestic Violence
Helen Reece
n
In this article, I examine the rationalesthat have been given forexte ndingdomestic violence leg-
islation to associated persons. Iargue that the empirical and principled rationales are unfounded
and that the ideologicalrationale is reactionary.Withregard to the empirical rationale, the extent
of violence that the aggregateof associated persons su¡ers is not high enough to justify privile-
ging associated persons over other citizens with regard to protection from violence. In relation to
the principled rationale, the impetus for domestic violence legi slationwas based on isolation and
inequality, which are not experienced in particular by the category of associated persons when
taken as a whole.Withregard to the ideological rationale,it is worrying that intimacy and equal-
ity are emerging as the touchstonesof a newer rationale for domestic violence legislation,which
rightly has moreto do with isolation and inequality than i ntimacyand equality.
INTRODUCTION
There was no signi¢cant opposition to the two additions that the Domestic Vio-
lence, Crime and Victims Act 2004 recently made to the list of associated persons
in section 62(3) of the Family LawAct 1996.
1
Neither was there much objection
when Part IV of the Family Law Act 1996 created the list.
2
Desp ite, or perhap s
because of this marked consensus, rigorous examination of the merits of both
the existence andthe parametersof the categoryof associated persons is long over-
due. In this article, I tackle this task by identifying three rationales that have been
given for the category, which I describe as the empirical, the principled and the
ideological.I argue that the empirical and principled rationales are unfounded and
that the ideological rationale is reactionary. Hence, I concludethat the category of
associatedpersons is misguided.
ASSOCIATED PERSONS
The category of associated persons stems from the Law Commission report,
DomesticViolence and Occupation of the Family Home, published in 1992.
3
The report
n
Reader in Law, Birkbeck College. I am grateful to John Gillott, Andrew Le Sueur and the anon-
ymous referees for helpful comments on earlier drafts of this article.
1 For support for the 20 04 additions to the category of associated persons, see eg ‘Rights of
Women Response to the Home O⁄ceCo nsultationPaper Safety andJustic e’(2003) at http://www.
rightsofwomen.org.uk/pdfs/safety%20and20%justice%20consultation%20response%
20september%202003.pdf (last visited 25 May 2006); A. Collinson,ToughLove: A Critique of the
DomesticViolence, Crime & Victims Bill 2003 (London: Policy Exchange, 2004) 60; L. Crompton,
‘CivilPartnerships Bill 200 4:The Illusion of Equality’ (2004) 34 Fam Law888, 890.
2 For opposition to the creation of the category of associated persons, see Sir Michael Neubert,
HC Deb vol 267 col 332 20 November1995.
3 Law Commission, DomesticViolencea ndOccupation of the Family Home (1992, ReportNo 207).
rThe Modern LawReview Limited 2006
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(2006) 69(5)MLR 770^791
identi¢ed several problems withthe existing domestic violence legislation, one of
the principal ones being its failure to protect people who fell outside the speci¢c
categories of husbands and wives and those living together as husbands and
wives.
4
Therefore the recommendation was that protection should be available
much more broadly between people who had a wide range of family or domestic
connections.
5
Their recommendation was enacted in section 62(3) of the Family Law Act
1996. This provision, as amended, currently provides that associated persons
include spousesand former spouses,civil partners and former civil partners, coha-
bitants and former cohabitants, those who have agreed to marry each other or to
enter a civilpartnership,those who liveor have lived in the same household other-
wise than merely by reasonof being the other party’s employee, tenant, lodger or
boarder, parties to the same family proceedings, those who are parents of or have
parental responsibility for a child, relatives and parties connected through adop-
tion.The relevance of the category of associated persons is that the law provides
enhanced civilprotection againstviolence that occursbetween associatedpersons.
This enhanced civil protection takes two main forms: ¢rst, a non-molestation
order may be made for the bene¢t of any associated person;
6
secondly, associated
persons wit h property interests may apply for occupation orders.
7
In 1998, Bainham commented:‘There are in all seven categories, and some of
these are themselves extremely broad. ‘Relative’ can surely never have been
de¢ned so widely. Imagine your surprise at discovering that for these purposes
you are a relative of your cohabitant’s half-sister, uncle or nephew.’
8
In evidence
to the House of Lords Special Public Committee that considered the Family
Homes and DomesticViolence Bill, the precursor to Part IV of the Family Law
Act 1996, Cretney referred to ‘the remarkably extended de¢nition of relative’.
9
Elsewhere, he explains that the term ‘relative’ is so expansive because it includes
relationships derived from cohabitation as wellas marriage and agrees with Bain-
ham that there is‘no more extensivestatutory de¢nition of a person’ski n.’
10
More-
over, although the term ‘cohabitant’ excluded same-sex relationships until
recently, the phrase ‘those who live or have lived in the same household’
11
has
always been generally understood to include lesbian and gay couples.
12
Accordingly, it would be reasonable to regard the category of associated
persons as strikingly wide. Nevertheless, both before and after the Domestic
4ibid13.Se e also S.S. M. Edwardsand A. Halpern,‘Protection for theVictim of DomesticViolence:
Time forRadical Revision?’ [1991] JSWFL 94,102.
5n3above,26.
6 Family LawAct 1996,s 42(1)(a).
7 Family LawAct 1996,s 33(1).
8 A. Bainham,‘Changing Families and Changing Concepts ^ Reforming the Language of Family
Law’(1998) 10CFLQ 1,13.
9FamilyHomes and DomesticViolence Bill: Proceedings of the Special Public Committee,HL55(1995)12
(Written Evidence).
10 S. M. Cretney, J. M. Masson and R. Bailey-Harris, Principles of Family Law (London: Sweet and
Maxwell, 7
th
ed, 2002) 255.
11 Family LawAct 1996,s 62(3)(c).
12 See eg n 8 above,13;n 9 above, 3,6,12; n 10above, 254; C.Lind and A. Barlow,‘Family Rede¢ni-
tion under Part III of the FamilyLaw Bill 1996’ [1996]Web JCLI; J. Murphy,‘DomesticViolence:
The New Law’ (1996) 59 MLR 845,850.
Helen Reece
771
rThe Modern LawReview Limited 2006
(2006) 69(5)MLR 770^791
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