II. Domestic and Cohabitation Relationships Violence Ordinance
Under the Domestic and Cohabitation Relationships Ordinance ( Cap. 189 ), an application can be made by an eligible person to the District Court or the Court of First Instance, and the court may grant an injunction which either:
- restrains the offender from using violence against the applicant or a child living with the applicant; or
- excludes the offender from the matrimonial/shared home or from a specified part of the matrimonial/shared home or from a specified area, regardless of the ownership of the property.
Where the court is satisfied that the abuser either has caused actual bodily harm to the victim or is likely to do so, a Power of Arrest may be attached to the injunction. This“power of arrest”enables the police to arrest the abuser where the abuser is reasonably suspected of breaching the injunction by reason of violence or by entering into or remaining in the area specified in the injunction. The police can use all necessary power including entry to a building by reasonable force to make the arrest. The arrested person will be brought before the Court of First Instance or the District Court, which ever made the injunction, to answer for the breach of the injunction (“the breach” here refers to the abuser not abiding by the requirements set out in the injunction).
If you or your children or other family members are assaulted or threatened by your spouse/partner or a person listed in Part C, you should report the matter to the police. For any emergency, please call 999.
How long do these injunction orders last?
The maximum length of time for an injunction order is 24 months. The order can be renewed once if the court sees it to be appropriate.
Can I apply for an injunction order without informing the abuser?
The Court may make an order at first without the abuser being told about it. In other words, you may apply to the Court without telling the abuserwhat you are going to do. However, the written order must be sent/given to the perpetrator before it can have any effect. You must therefore take steps to ensure that you are in a place of safety until the order has been served.
How can I apply for the injunction orders?
The application forms for injunction orders can be obtained from a solicitor, the Legal Aid Department, or the Family Court Registry.
Legal Aid Department
Telephone: 2537 7677
Fax: 2537 5948
Family Court Registry
Address: M2, Wanchai Law Courts, Wanchai Tower, 12 Harbour Road, Hong Kong
Telephone: 2840 1218
Fax: 2523 9170
Opening hours: Monday to Friday 9:00 a.m. to 1:00 p.m.; 2:00 p.m. to 5:00 p.m.; Saturday 9:00 a.m. to 12:00 noon (Closed on Sundays and Public Holidays)
Due to the complexity of the procedures, it is recommended that you instruct a solicitor to act for you if at all possible. Provided your case has merit and you are financially eligible you may qualify for Legal Aid. If you do not qualify for Legal Aid, you will be responsible for paying the costs of your solicitor.
A. Spouse or former spouse
Section 3 of the Domestic and Cohabitation Relationships Ordinance ( Cap. 189 ) enables the District Court to grant an injunction to an applicant who has been molested by their spouse or former spouse. The injunction may contain a provision restraining further molestation. It may also restrain the abuser from entering or remaining in the victim’s residence or a specified part of that residence. This is so whether or not the residence is the common residence or matrimonial home of the parties.
There is no definition of “molestation” in the Domestic and Cohabitation Relationships Ordinance. In P v C Deputy District Judge Sharon Melloy, as she then was, commented on the lack of authority of the definition of molestation at the time. She stated:
Molestation has been defined widely and in the wife’s solicitors closing submissions I was referred in particular to the following definitions:
“…… molestation may take place without the threat or use of physical violence and still be serious and inimical to mental and physical health…… It applies to any conduct which can properly be regarded as such a degree of harassment as to call for the intervention of the court…… Molest is a wide, plain word which I would be reluctant to define or paraphrase. If I had to find one synonym for it, I would select ‘pester’……In Hong Kong “scolding” has been found to be sufficient for both a non-molestation and an ouster order…… In addition, there usually has to be a form of intent. Harassment, it has to be said, of course, includes within it an element of intent, intent to cause distress or harm”.
Each case will depend on its own particular facts, but the day to day meaning of “molestation” is to annoy, disturb or persecute, especially with hostile intent or injurious effect. Molestation does not necessarily require violence or threats of violence, but its meaning extends to conduct which is sufficiently harassing, demeaning, belittling, and degrading as to call for the intervention of the court. The other meaning of molest is to be subjected to unwanted or improper sexual activity. Even without the threat or use of violence, or being subjected to unwanted or improper sexual activity, molestation can be seriously detrimental to physical or mental health.
For example, in P v C the wife alleged a number of incidents of violence, that the husband was hot tempered and controlling, and had mounted a campaign of intimidation and harassment against her.
B. Cohabitants or former cohabitants
Under section 3B of the Domestic and Cohabitation Relationships Ordinance ( Cap. 189 ), an injunction may be obtained by a party to a cohabitation relationship who has been molested. Section 3B is not gender specific. The injunction can restrain the abuser from further molesting the cohabitee, and where there has been molestation; restrain the user from entering the victim’s residence or a specified part of that residence. This is so whether or not the residence is the common residence of the parties. In deciding whether or not a cohabitation relationship exists, the court looks at all the circumstances of the case.
Some relevant, though not exclusive factors are:
- whether the parties are living together in the same household;
- whether the parties share the tasks and duties of their daily lives;
- whether there is stability and permanence in the relationship;
- the arrangement of sharing of expenses or financial support, and the degree of financial dependence or interdependence, between the parties;
- whether there is a sexual relationship between the parties;
- whether the parties share the care and support of a specified minor;
- the parties’ reasons for living together, and the degree of mutual commitment to a shared life;
- whether the parties conduct themselves towards friends, relatives or other persons as parties to a cohabitation relationship, and whether the parties are so treated by their friends and relatives or other persons.
C. Other family members
Apart from spouses, former spouses, cohabitants and former cohabitants, the following categories of persons are also within the scope of injunction orders under the Domestic and Cohabitation Relationships Ordinance :
- a Child of the victim or a child who lives with the victim;
- Victim’s step-father, step-mother, step-grandfather or step-grandmother;
- Victim’s father-in-law or mother-in-law who is the natural parent, adoptive parent or step-parent of the victim’s spouse;
- Victim’s grandfather-in-law or grandmother-in-law who is the natural grandparent, adoptive grandparent or step-grandparent of the victim’s spouse;
- Victim’s son, daughter, grandson or granddaughter (whether natural or adoptive);
- Victim’s step-son, step-daughter, step-grandson or step-granddaughter;
- Victim’s son-in-law or daughter-in-law who is the spouse of the victim’s natural child, adoptive child or step-child;
- Victim’s grandson-in-law or granddaughter-in-law who is the spouse of the victim’s natural grandchild, adoptive grandchild or step-grandchild;
- Victim’s brother or sister (whether of full or half blood or by virtue of adoption);
- The brother or sister (whether of full or half blood or by virtue of adoption) of the victim’s spouse;
- The victim’s step-brother or step-sister;
- The step-brother or step-sister of the victim’s spouse;
- The victim’s uncle, aunt, nephew, niece or cousin (whether of full or half blood or by virtue of adoption);
- The uncle, aunt, nephew, niece or cousin (whether of full or half blood or by virtue of adoption) of the victim’s spouse; or
- The spouse of any brother, sister, step-brother, step-sister, uncle, aunt, nephew, niece, cousin.