For anyone who is or has experienced domestic abuse; whether it be from a partner/ex-partner or a family member, please know you are not alone and that there is help available out there for you.
The necessity for help is even greater where there are children involved as they too can suffer abuse, be it directly or indirectly i.e., if they are witness to, hear or experience the aftermath of the abuse. Neither you nor indeed your children should have to endure the abuse.
If you fear for your and/or your children’s safety and feel you are in immediate danger, your first port of call should be to contact the police. Domestic abuse is no different to any other crime, and should not therefore be tolerated.
Other measures you can take to protect yourself and/or your children is by applying for an injunction in the Family Court. You can, in fact, apply for two types of injunctions, namely:
- A Non-Molestation Order; and/or
- An Occupation Order.
Non-Molestation Order
The purpose of this Order is to stop a partner/ex-partner or a family member (the Respondent) acting in a certain way or doing certain things.
The type of things the Order can stop the Respondent from doing are causing violence, making threats of violence, intimidation, harassment i.e., attending your address, workplace etc, communicating with you (calls, text messages or messages via social media) and/or directing third parties to do so.
The Order can also prohibit the Respondent from going to, entering or attempting to enter a defined area. This is known as “zonal” Non-Molestation Order. However, if you are married and/or jointly own the family home/tenancy is in joint names with the Respondent, the Court will be less inclined to grant the zonal aspect of the Order. You would in such circumstances be expected to apply for an Occupation Order. Please see further below with respect to this.
The application for a Non-Molestation Order is made on an emergency basis and without the Respondent’s knowledge. If the Order is granted by the Court there will be a return hearing approximately 14 days later, to allow the Respondent the opportunity to inform the Court as to whether or not they intend to defend the Order.
To apply for a Non-Molestation Order, you and the Respondent must be ‘associated’ persons. Examples of this include:
- A spouse or ex-spouse
- A civil partner or previous civil partner
- Someone who you are living with or have lived with
- The father or mother of your child
- Someone who you have had an intimate personal relationship with
- A family member.
A Non-Molestation Order is ordinarily granted for a period of up to 12 months – the Order can, depending on the circumstances, be extended by a further 12 months.
For the Order to be effective, it must first be served on the Respondent. Service is carried out by a Process Server, who will personally serve the Order on the Respondent.
Breaching a Non-Molestation Order is a criminal offence. If the Respondent is found to be in breach, they can be sent to prison or issued a fine.
Occupation Order
This type of Order can dictate who can and cannot live in the property or any part of the same – the Order can also exclude the Respondent from an area around the property.
If you and the Respondent both need to reside in the property, the Order can specify which parts of the property you can do so.
The Order can also deal with matters such as who pays the mortgage/rent and household bills. For avoidance of doubt, the Order has absolutely no impact on the financial/legal ownership of the property.
The Courts will only grant the Order in serious circumstances as it essentially stops someone who is legally entitled to live in the property from actually doing so. You would ordinarily apply for such an Order where there has been domestic abuse or threats of abuse, but also in circumstances where you are in the midst of a divorce/separation and there is a dispute as to who will have access to the property. The Court will generally grant the Order if it is satisfied that that you (the Applicant) will suffer significant harm should it not be made.
Although the application for the Order can be made without notice to the Respondent, the expectation from the Courts is that it should always be made on notice given the draconian nature of the same.
To apply for the Order, there are three requirements that must be satisfied, which are as follows:
- You have a legal right to occupy the property
- The property has been your and the Respondent’s home
- You and the Respondent must be ‘associated’ persons, in one of the following ways:
- are or have been married
- are or have been civil partners
- are a cohabiting or former cohabitants
- live with or have lived in the same household, otherwise than merely by reason of one of them being the other’s tenant, lodger etc
- are relatives
- engaged to be married or be in a civil partnership
- have or have had an intimate personal relationship with each other which is or was of significant duration
- you are parties to the same family proceedings.
An Occupation Order is ordinarily made for a period of up to 6 months, but can be further extended for a maximum of 6 months.
Breach of the Order is not an automatic criminal offence, unless a power of arrest has been attached to the same. The Courts will ordinarily do this in circumstances where the Respondent has been violent or threatened to use violence. Where a power of arrest is not attached to the Order, you would be required to apply to the Court in order to seek a warrant for the Respondent’s arrest.
Next Step
Should you wish to make an application for either one or both of the Orders, or would simply like further advice, please do not hesitate to call 01245 493939 or email family@gepp.co.uk.in order to book an appointment with me.
