Unfortunately a feature of some family law cases is the element of domestic abuse and family lawyers are often asked by clients how to protect themselves or how to respond to allegations of domestic abuse which has resulted in an injunction being made against them. Non-molestation orders and occupation orders are civil injunctions which can be obtained through a court application under the Family Law act 1996. Such applications can be made without giving any notice to the other party and can have a power of arrest attached to them. An applicant can turn up at court and wait for a judge to deal with their application, so often the first the other party knows that an order has been made against them is when they receive it.
What is a non-molestation order?
A non-molestation order is a civil injunction to protect a party and any children from harassment, abusive or aggressive behaviour and threats. It can prevent the party who is the subject of the order from contacting the applicant either by telephone, email, text or via social media. It is intended to protect the applicant and any children from any physical, emotional or psychological harm. The order can last up to 12 months.
What is an occupation order?
This order is intended to ensure that the applicant can live safely in their home and prevents the other party from entering the home or coming within a certain distance. It is intended as a temporary protection measure and is often granted whilst the parties are going through an acrimonious separation. The court applies a “balance of harm test” in the first instance to decide whether the applicant will suffer more harm if the other party is allowed to continue living in the property or whether the other party will suffer more harm if they are forced out of the property. The welfare of any children is uppermost in the court’s mind. An occupation order can last 12 months.
Who can apply?
Persons who are “associated” with each other, either by being married or in a relationship, or having been married/cohabiting, relatives or parents, can apply for either order or both at the same time. Both applications will need to be accompanied by a witness statement setting out the reasons you are making the application along with any evidence to support your case. You can apply without telling other party, this is known as a “without notice” application, although it is unusual for the courts to grant an occupation order on this basis, as they would often wish to hear from the other party first before the court will decide whether to make an order or not. If you make an application without notice there will be another hearing at which the other party will be invited to attend and put forward their case.
If you are considering making an application for a non-molestation order or an occupation order or have received an order against you and you require legal advice please contact the Family Team at Wheelers LLP. We have three offices, Fleet, Ash Vale and Farnborough and we offer a free half-hour appointment.