The term “domestic violence” includes all acts of violence that can occur among people living in a household. Whether it is a child, the father, the mother or the partner who is the victim – if the parties involved live together in a domestic community, assaults of a physical, sexual and physical nature are referred to as domestic violence.

Therefore, the term also includes acts such as stalking, threats, insults, deprivation of liberty, telephone terror (cf. § 1 para. 1 sentence 3 no. 4 GewSchG) and much more.

The Protection against Violence Act (§§ 1-4 GewSchG), which came into force on 1 January 2002, is a civil law measure to protect against violence and stalking. Since it is a preventive measure, an act of threatened violence is sufficient to initiate proceedings to protect against violence (cf. § 1 (2), no. 1 GewSchG).

After an application has been made, the competent court can make various orders. The defendant can be prohibited from the following acts (cf. § 1 (1) sentence 3 nos. 1 to 5 GewSchG):

• Entering the respondent’s home,
• Staying within a certain radius of the respondent’s home,
• Going to a place where the applicant regularly stays (e.g. the workplace),
• Contacting the applicant (in person, in writing, by telephone, through third parties, etc.).

If the facts of § 1 GewSchG are given, according to § 2 GewSchG, it is also possible to apply for the transfer of the shared flat for sole use.

The court decides which measures are ultimately taken based on the individual case. The family court is responsible (§ 111 no. 6 FamFG).

Schlun & Elseven Rechtsanwälte will be happy to advise you before and after you file your application. Our lawyers will be at your side throughout the proceedings and will support you with the necessary commitment. Feel free to use our online form and contact us today.

To initiate proceedings, the facts of the case, i.e. the violent behaviour, must be affirmed in lieu of an oath. Parties can complete this action at the family court or with a lawyer.

You should submit all relevant documents for further substantiation. Such documents may include previous police reports or medical certificates documenting the applicant’s injuries. Witnesses can also be named as a precautionary measure.

The court decision takes place in summary proceedings as soon as the application has been filed. Due to the matter’s urgency, the application filing deadline is two weeks after the incident.

What is Meant by “Prima Facie” Evidence?

Establishing prima facie evidence – “Glaubhaftmachung” – (cf. § 51 (1) sentence 2 FamFG) means that the applicant does not need to provide evidence. Proof of the overwhelming probability is sufficient. This can be done in various ways. In most cases, the submission of an affidavit is used. The submission of medical certificates, police reports, or witness statements by third parties can support this.

A prima facie case can be shaken using a “counter-prima facie” case, i.e. substantiated objections are raised and made credible.

Admissible Evidence

The court may use various means of evidence. In the proceedings for protection against violence, the usual standards of evidence under civil procedure law (ZPO) are also appropriate, § 31 (1) FamFG.

Possible means of evidence would therefore be:

• Affirmation in lieu of oath,
• expert opinion,
• judicial inspection,
• (present) witnesses,
• documents (e.g. medical certificate).

The Decision of the Court

According to § 49 (1) FamFG, the court may “take a provisional measure by means of a temporary injunction insofar as this is justified under the legal relationship provisions and there is an urgent need for immediate action”.

According to§ 214 (1) sentence 2, FamFG, there is an urgent need for immediate action if an offence under § 1 GewSchG has already been or is likely to be committed. The court then decides within a few days.

The defendant does not have to be heard due to the need for immediate action in summary proceedings, and there is no oral hearing. However, the defendant may request a hearing after the order has been issued, which means the court must decide on the application again after the hearing.

The holding of the hearing is an opportunity for the defendant to present the facts of the case from their point of view.

Conduct of the Oral Hearing

There is no legal remedy against the order for protection against violence. The defendant only has the possibility to file an application for an oral hearing. Subsequently, the court will set a non-public date. No witnesses are called to this hearing. Only persons who appear at the hearing (present witnesses) will be heard. It is, therefore, advisable to ask witnesses to appear in person.

At the hearing, the parties talk about the incident. The defendant, in particular, has the opportunity to describe the facts of the case from his point of view. The hearing usually ends with a settlement. The parties involved agree, for example, on a mutual ban on contact. If no settlement is reached, the court decides by order.

Duration of the Court Protection

The duration of the interim injunction is usually limited to 6 months. In the case of further violations, however, an extension can be applied for, according to § 1(1)  sentence 2 GewSchG.

Since 11 January 2015, cross-border protection is possible. For this purpose, the court that was responsible for the case must fill out a form, which then recognises the protection against violence. This enables effective prosecution and civil action, especially in border areas.

If the other party does not comply with the behaviour regulated by the order or the settlement, it is possible to report this to the police. Violation of the interim injunction constitutes a criminal offence and is punishable by imprisonment of up to one year or a fine (cf. § 4 GewSchG). In addition, the victim can also report criminal offences (e.g. bodily harm, etc.).

Decisions regarding costs are based on § 81 FamFG. In most cases, the procedural costs are imposed on the respondent on the basis of an equity assessment (OLG Brandenburg, 5th Family Senate, decision of 19.02.2013 – 3 UF 43/12).