This order aims to prevent a person (the applicant) and their children from experiencing violence, threatening behaviour, and pestering from their abuser (the respondent). When deciding whether to grant a non-molestation order the Court will consider all the circumstances in order to secure the health, safety and wellbeing of the applicant and any children.
A non-molestation order can last for a period of 6 to 12 months however on some occasions the Court may grant them for longer periods than this.
This order can exclude the respondent from the home, part of the home, prevent them from returning or from entering the surrounding area of the home. When deciding whether to grant an occupation order the Court will consider:
- The housing needs and resources of the applicant, the respondent and any children
- The financial resources of the applicant and the respondent
- The likely effect any order, or any decision not to make an order, will have on the applicant, the respondent and any children
- The behaviour of the applicant and the respondent toward one another
The duration of an occupation order does not usually exceed 12 months. However, the terms of the occupation order you can apply for, the duration of the order and the factors that the Court will consider depend on the applicant’s and the respondent’s legal entitlement to the home (i.e. whether they have a right to occupy the home or not, they are a spouse/ex-spouse or civil partner/former civil partner or cohabitant/former cohabitant.)
When considering occupation orders, the Court can also make orders in relation to payments of the mortgage, rent and other outgoings such as repairs and maintenance to the home.
Who can apply?
A person can apply for an injunction if they are an ‘associated person’. This means that the person’s abuser must be connected with them in one of the following ways:
- a spouse or ex-spouse
- they are or were in a civil partnership
- cohabitants or former cohabitants (they live with or have lived with one another as a spouse or civil partner)
- they have lived in the same household
- They have a child together
- they are relatives to either the applicant or the abuser (this includes immediate relations as well as grandparents, grandchildren, aunts, uncles, cousins, nieces, nephews, step-parents and step-children)
- they are engaged to marry or enter into a civil partnership (even if the engagement ends)
- they are or have been in a ‘intimate relationship of significant duration’
- they are both parties in the same family proceedings for example parties in a divorce or children matter.
The Domestic Violence Crime and Victims Act 2004 amended the Family Law Act 1996 to include same sex couples. Therefore, people who live together are able to apply for occupation orders and non-molestation orders, regardless of their gender or sexual orientation.
Children under 18 years old can also apply for a non-molestation order and/or an occupation order. In relation to a child an ‘associated person’ is both parents or persons who have or have had parental responsibility. However, if a child aged under 16 wishes to apply for an injunction, they will require permission from the Court to do so.
In emergency situations the Court can make a non-molestation and/or occupation order on the same day as the application has been made without giving notice to the respondent. These are called without notice applications. Again, the Court will consider all circumstances including any risk of significant harm to the applicant or any child if the order in not made immediately.
Emergency applications that are obtained without notice to the respondent will be temporary, therefore the applicant will have to return to Court, within 14 days of the emergency hearing, for a full hearing once the respondent has been served with notice.
Since 1st July 2007 a breach of the terms of a non-molestation order is a criminal offence which is punishable by imprisonment for a period up to five years. As this is a criminal offence it does not need a power of arrest attached to the order, although this is often done in practice.
A power of arrest can still be attached to an occupation order. If there is no power of arrest, then the applicant can return to Court and apply for an arrest warrant. The respondent will be in contempt of Court for not complying with a Court order. The Court can decide to fine the respondent, impose a suspended sentence, or commit them to prison.
The provisions and proceedings surrounding both non-molestation orders and occupation orders can be quite detailed and complex thus it is important to seek legal advice before applying. If you would like to discuss these types of injunctions in more detail then do not hesitate to contact us today on 01446 411000 and one of our team will be happy to help.
Family Law Act 1996 (s33, 35, 36, 37, 38, 40, 42, 62)
The Domestic Violence Crime and Victims Act 2004 (s3)