At risk of domestic abuse?

Fast fact about legal measures to protect you from domestic abuse

woman-head-in-handsWhere a client is at risk of domestic abuse our advice will almost always be that an application for a non-molestation order should be made. Where the parties live in the same house, the application may be made alongside an application for an occupation order so that the other party is not allowed to re-enter the property.

Non-molestation orders

You can apply for a non-molestation order against an “associated person”; this includes spouses/civil partners, ex-spouses/civil partners, cohabitees, former cohabitees, various family members and persons with whom you have, or have had, an intimate relationship for a significant duration.

In urgent cases, for instance if the applicant is in immediate danger, it may be possible to obtain such an order “without notice”. Where an application is made on a “without notice” basis a hearing takes place before the other party is aware that an application has been made. If the application is successful, the court will make an interim non-molestation order.

Commonly a non-molestation order will prevent the other party using or threatening violence against the application, or intimidating, harassing or contacting (directly or indirectly) the applicant.

Breach of a non-molestation order is a criminal offence.

Occupation orders

Where one party wishes for the other to leave the family home, or where they have been refused access to the property by the other, an application for an occupation order can be made. The court has a wide range of powers when considering an occupation order application. These include excluding one party from the property, allowing the applying party the right to remain in the property or part of the property, and regulating both or either of the parties’ occupation of the property.

Such applications can also be made “without notice”, however they are only likely to be granted in exceptional circumstances, given that they effectively deprive a person of their home without the opportunity to respond to the allegations made against them. They are not intended to be used as punishment, but instead to secure the safety of the victim.

Any orders made “without notice” must be served upon the other party immediately and usually remain effective until the parties return to court for the next hearing. The second hearing will be listed within 14 days of the first where an order has been made without notice and both parties will have to be present.

Relevant factors

The court will take a wide range of factors into account when deciding whether to make an occupation order; the court will not make an occupation order solely on the basis of an unpleasant atmosphere in the house.

The factors the court considers include, but are not limited to:

  1. The housing needs and resources of each of the parties and any relevant child/children;
  2. The parties’ respective financial situations;
  3. The likely effect of either making or not making an order on the health, safety and wellbeing of the parties or any child/children;
  4. The conduct of the parties.

For further information, please do not hesitate to contact Joanne Clarke, Associate, on joanne.clarke@LA-law.com or 01202 786127.

For further information on family law, please visit our website.