We are committed to providing our clients with the very best advice and support at the most difficult times in their lives.
We are able to act very quickly to obtain injunctions for your protection. If you are in a relationship with someone that is violent to you or abusive in other ways such as they intimidate you; control you physically or financially or isolate you from your friends and family, then you may need our help.
We can offer you clear advice and assistance in a supportive and non-judgemental environment.
Below is some general information about some of the protective orders that are available. Please call us so that we can give you tailored advice regarding your circumstances.
What is a Non-Molestation Order?
A Non-Molestation Order is the name given to injunctions granted within family law proceedings under s.42 Family Law Act 1996.
Non-Molestation Orders aim to protect those at risk of suffering harm, as a result of another person’s behaviour towards them. Specifically, Non-Molestation Orders prohibit any behaviour that is perceived by the Court as amounting to molestation of the person applying for protection, or any relevant child.
Non-Molestation Orders recognise the need to protect applicants from physical harm i.e. violent behaviour; harassment and where appropriate, emotional harm, which covers anything from bullying name calling to financial control.
In deciding whether to exercise its powers to make a Non-Molestation Order, the Court must consider all of the circumstances including the need to secure the health, safety and well-being of the person applying for protection and any relevant child.
The following three principles must be considered:-
• There must be evidence of molestation.
• The applicant or the child must need protection and
• The Judge must be satisfied on the balance of probabilities that an Order is required to control the behaviour which is complained of.
The emphasis of the Court is to focus on the effect of the behaviour rather than the nature of the conduct.
A Non-Molestation Order can be expressed in general terms, or can clearly define particular acts which are forbidden. Most Judges prefer to clearly define the terms of any Non-Molestation Order, so as to avoid Respondents misunderstanding the terms of the Order.
A Non-Molestation Order may be made for a specified period, or until further Order. The majority of Non-Molestation Orders are made for a period of six to twelve months.
Who can apply for a Non-Molestation Order?
Anyone over the age of 16 can apply for a Non-Molestation Order as long as the Respondent is an “associated person” to the Applicant, as defined in s.62 of the Family Law Act 1996.
Associated persons are as follows:-
(a) Spouses and former spouses;
(b) Co-habitants and former Co-habitants;
(c) Civil partners and former Civil Partners;
(e) Those who have been engaged to be married;
(f) Those that have had an intimate relationship of significant duration;
(g) Those who live or have lived in the same household but are not employees, tenants, lodgers or boarders;
(h) They are the parent to a relevant child or have or had Parental Responsibility for that child or are parties to the same family proceedings other than the injunction proceedings.
Persons under the age of 16 can apply for a Non-Molestation Order if the Court has granted them leave (permission) to do so. The Court will only grant leave if it is satisfied that the Applicant has sufficient understanding to make the application.
What is an Occupation Order?
Occupation Orders give the Court power to deal with the occupation rights of property, whether that property is owned or rented.
The Court has the power to make Occupation Orders under s.33 to 38 Family Law Act 1996.
An Occupation Order can:-
(a) require the Respondent to permit the applicant to enter and remain in the property or part of the property;
(b) regulate the occupation of the property by either or both parties. This means that the Court can Order than one party be excluded from certain rooms within the property as the Court deems appropriate;
(c) require the Respondent to leave the property;
(d) exclude the Respondent from a defined area in which the property is situated.
The most common Occupation Order to be made is for the Respondent to be ordered to leave the property and then not go within a specified distance of it.
Occupation Orders do not have any impact on the legal ownership of the property or the financial interest either party may have in the property.
Who can apply for an Occupation Order?
The rules on who can apply for an Occupation Order are the same as those for Non-Molestation Order applications.
What are the Courts Criteria for making an Occupation Order?
In deciding whether or not to make an Occupation Order the Court must first of all consider the “balance of harm test”. Under the “balance of harm test” the Court must make an Occupation Order if it appears to the Court that the Applicant or any relevant child is likely to suffer significant harm because of the conduct of the Respondent if an Order is not made unless:
(a) The Respondent or any relevant child is likely to suffer significant harm if the Order is made; and
(b) The harm likely to be suffered by the Respondent or child in that event is as great as or greater than the harm caused by the conduct of the Respondent which is likely to be suffered by the Applicant or the child if the Order is not made.
How long will an Occupation Order last?
There is no maximum duration for an Order made under s.33 of the Family Law Act. However, because of the serious nature of such Orders courts do tend to impose time limits on the Orders e.g. for six or twelve months or in some situations for the duration of other related proceedings such as divorce and ancillary relief proceedings. If an Order is not made under s.33 there are limits to the duration of the Order which I will set out separately if necessary.