InsightsInsight - Family and Divorce - POSTED: January 26 2018
Non-molestation orders and occupation orders
Non-molestation and occupation orders are known as injunctions. They are applied for in the family courts and can help protect individuals from instances of domestic abuse.
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What is domestic abuse?
Domestic abuse has a wide scope and includes all forms of physical, sexual, financial and emotional abuse involving those who are or have been intimate partners or family members.
Some forms of domestic abuse are criminal offences and should be reported to the police. In some cases clients will be advised either by the police or their lawyers to apply for a non-molestation and/or occupation order, which enables an individual to obtain a civil injunction in the family courts for protection from domestic abuse.
To obtain such orders, it is necessary to apply to court for an order. Such applications can be with or without notice, i.e. with or without telling the alleged abuser. Without notices applications are for urgent cases with a real and immediate danger of harm.
Such orders are used to stop an “associated person” using or threatening violence to either an individual or their child, to stop them ‘molesting’ an individual, and to prevent them entering a particular place or area (e.g. an individual’s home). “Associated persons” include, but are not limited to, current and former spouses/cohabitees/fiancés/partners and family members. ‘Molesting’ is wide ranging and includes intimidation, pestering, persistent abusive communications and harassment as well as physical abuse.
The application would need to include:
- evidence of the behaviour complained of
- that the applicant (or their children) are in need of protection
- that an order is needed to control the alleged abuser’s behaviour
Typically a witness statement detailing the behaviour and incidents concerning the alleged abuser will be required. This can be supported by other relevant documentation (e.g. text messages showing abusive communications).
Such orders are usually given for a finite period (e.g. 6-12 months), although it is possible to apply for further orders in future.
Clearly nobody should be subject to molestation in any event, but importantly it is a criminal offence to breach the order, punishable by up to 5 years imprisonment.
An occupation order determines who will live at the family home and can also include exclusion provisions preventing the alleged abuser from entering the home or even a defined area in which the home is located.
In determining whether to make the order, the court applies the ‘balance of harm’ test, i.e. whether the applicant (or their children) is likely to suffer significant harm due to the alleged abuser’s conduct if an order is not made. The court will also consider the impact of making an order, and whether this is in fact likely to cause significant harm to the alleged abuser or the children. As the name suggests, it is a balancing exercise and the court looks at a variety of circumstances including:
- the housing needs of the applicant, their children and the alleged abuser
- the finances of both parties
- the likely effect of an order on the health safety and wellbeing of the applicant, their children and the alleged abuser
- the conduct of the parties
Occupation orders are considered an extreme measure given they override property rights, and for this reason they will be only be made in exceptional circumstances. Again, a witness statement and other relevant documentation can be utilised in support of the application.
As with the non-molestation order, an occupation order typically lasts for a specified period, but can be extended. An occupation order can have a power of arrest attached, so that if the alleged abuser breaches the order, they would be guilty of a criminal offence.
Applying for a non-molestation or occupation order can be expensive given the work required to prepare and obtain the order over a short period. However, there are a range of funding options to consider. Furthermore, there is a possibility of legal aid funding as a result of domestic abuse, if there is evidence (e.g. from the police) that either the applicant or their children are at risk of harm from the alleged abuser, and that the applicant cannot afford the legal costs required.
Unfortunately, instances of domestic abuse continue to rise. There are a number of outlets in which abuse can be reported including the police and charities such as Womens Aid and Refuge. Our experienced team here at Brachers can guide individuals through the process of obtaining both non-molestation and occupation orders.
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