NON-MOLESTATION AND OCCUPATION ORDERS (INJUNCTIONS)

An injunction is a Court Order that requires someone to do or not to do something.  There are two main types of injunctions available under Part IV of the Family Law Act 1996:

1    Non-Molestation Order;

This is aimed at preventing your partner or ex partner from using or threatening violence against you or your child, or intimidating, harassing or pestering you, in order to ensure the health, safety and well-being of yourself and any children.

2  Occupation Order

This regulates who can live in the family home and can also restrict your abuser from entering the surrounding area.  If you do not feel safe continuing to live with your partner, or if you have left the home because of violence but want to return and exclude your abuser, you may want to apply for an Occupation Order.

Breach of Orders

A breach of a Non-molestation Order is a criminal offence.  You can still take your abuser back to the civil court for breaking the Order, if you prefer this.  If you already have an Occupation order, you may have a Power of Arrest attached.  These powers come into effect if your abuser breaks the order. 

Breach of a Non-molestation Order is also automatically a criminal offence and so your abuser should be arrested if the Order is breached.  Occupation Orders are treated differently and a separate Power of Arrest will still be needed.

Who is Eligible to Apply for an Injunction?

In order for you to apply for these Orders you must be an “associated person”.  This means you and your partner or ex partner must be related or associated with each other in one of the following ways:

  • you are or have been married to each other;
  • you are or have been in a civil partnership with each other;
  • you live together or have lived together as a couple (including same sex couples);
  • you live or have lived in the same household;
  • you are relatives;
  • you are or have been engaged to each other;
  • you have a child together;
  • you were both involved in the same family proceedings e.g. divorce or child contact.

If you are not eligible to apply for an injunction under the Family Law Act, you can also get civil injunctions under the Protection from Harassment Act 1997.  You can also get a Restraining Order attached when criminal proceedings have been taken if the court believes you are likely to be at risk.  Restraining Orders can provide the same protection as injunctions under the civil law but may be more effective as they can carry stronger penalties. 

If you are applying for an Occupation Order you either have to have a legal right to occupy the home (as joint or sole tenant or owner), or you have to be or have been married to, or living with, an opposite sex partner who is the owner or tenant.  When making an Occupation Order, the court may make other related Orders imposing obligations on you or your abuser, e.g. relating to repair and maintenance of the home or to payment of rent or mortgage. Occupation Orders can be applied for to either remove a person from a property or to gain entry.

Injunctions are normally for a specified period of time, e.g. six months, but can be renewed.  They can be made “until further Order”. 

Going to Court

Applications for injunctions under the Family Law Act 1996 are usually held at the county court.  The application will be in a closed court and no-one who is not directly concerned with your case will be allowed in.  This means that you will be able to take in your solicitor but will not normally be allowed to take in a friend or other supporter, although they can stay in the waiting room. 

How Long Does it Take to Get an Injunction?

If you are in immediate danger an application can be made to the Court on the same day without your abuser being there.  This is called a “without notice” application.  The court will need to consider whether or not you are at risk of harm, or whether you will be prevented or deterred from applying if you have to wait for your abuser to be served with notice, or whether your abuser is avoiding being served.  If the court grants a “without notice” Order, you will have to return to court for a full hearing once your abuser has been served with the notice. 

What Evidence will be Needed? 

You will need to make a statement about the physical and emotional abuse you have experienced.  You should be as precise as possible about all the ways you have been physically and emotionally harmed, the dates and times (if you have them) and the effects on you and your children.  It will help if you have kept a record of past events or if you have independent evidence such as police or medical reports. 

Undertakings

The court sometimes suggests that instead of an injunction, the abuser should make an undertaking (a promise) to the court in the same terms as the application you were making.  The difference with an undertaking is that breach constitutes contempt of court and so can still be dealt with by the court in the same way as a breach of an Order, but a Power of Arrest cannot be attached and the person giving the undertaking normally does so without making any admissions as to the conduct alleged.