INJUNCTIONS, NON MOLESTATION ORDERS AND OCCUPATION ORDERS

Unfortunately when a relationship breaks down emotions are high and for some couples this can extend to issues of domestic abuse which can involve physical, sexual, financial, psychological and emotional abuse. In these cases the law is available to protect vulnerable parties and it may be possible to obtain Orders from the Court which can either prevent one party from approaching or contacting the other and/or regulates the parties’ use of a property. The Court may exclude one party from a property entirely in certain circumstances to protect the other.

If at any time you feel you are subject to any form of abuse you should seek early legal advice.

There are two ways to apply for an injunction – with or without notice. A without notice application is one which is made without your spouse/partner knowing about it. Such applications can only be made where there is a real and immediate danger of serious injury or irreparable harm. The Court will have regard to all the circumstances of the case, including any risk of significant harm to you or the children if an Order were not made immediately. The Court will also consider whether you would be deterred or not make an application at all if an immediate Order were not made. The Judge will also consider whether there is any reason to believe your spouse/partner is deliberately evading service and you or the children will be seriously prejudiced by any delay involved in trying to locate him/her.

NON-MOLESTATION ORDER

A Non-Molestation Order can forbid your spouse/partner from:

  • Using or threatening violence against you (and your children)
  • Intimidating, harassing or pestering you (and your children)
  • Going to areas/addresses he/she knows you (and your children) are living or visiting regularly ie School.

OCCUPATION ORDER

An Occupation Order will require your spouse/partner to vacate your property.

APPLICATION FOR AN INJUNCTION ORDER

An Application will be made to the Court for an Order. A sworn Statement setting out the facts of the case will have to be submitted with the application.

When deciding whether to make an Order, the Court will consider various factors:-

  • The housing needs and housing resources of each of you and of any children.
  • Your respective financial resources.
  • The likely effect of any order, or of any decision by the Court not to exercise its powers, on the health, safety or wellbeing of each of you and of any children.
  • The conduct of each of you in relation to each other and otherwise.

If you were married to the other party and you have no existing right to occupy the property, the Court must also consider the following additional factors:

  • The length of time which has elapsed since you last lived together.
  • The length of time which has elapsed since the marriage was dissolved.
  • The existence of any current legal proceedings between you for a financial order pursuant to the divorce, or for an order under Schedule 1 Children Act 1989 for financial relief or relating to the legal or beneficial ownership of the property.

If you are cohabiting with your partner and you have no existing right to occupy the property, the Court will also consider the following:

  • Whether you have any children, or whether there are children involved for whom either of you have or have had parental responsibility.
  • The length of time during which you have lived together as husband and wife.
  • The length of time which has elapsed since you stopped living together.
  • The existence of any current legal proceedings between you for a financial order pursuant to the divorce, or for an order under Schedule 1 Children Act 1989 for financial relief or relating to the legal or beneficial ownership of the property.

The Court will also apply what is known as “the balance of harm” test. If it appears to the Court that you or any children are likely to suffer significant harm attributable to the conduct of your spouse/partner, the Court must make an Occupation Order unless it appears to the Court that you or your children are likely to suffer even greater harm if such an Order is made.

If an Order is made in your favour, it could be for a specified period, until the occurrence of a specified event or until another Order is made by the Court. If it is for a specified period, then it is often for six months. In certain circumstances, it is possible for the Order to be renewed for a further period of six months.

CONSEQUENCES OF BREACHING THE INJUNCTION

If your spouse/partner were to breach the Injunction in any way, after they have been made aware of the Injunction itself, you could immediately telephone the police who could arrest him/her straightaway. The police would have to bring him/her before the Judge within 24 hours, excluding Sundays, Christmas Day and Good Friday.

Alternatively, you may wish to consider applying to the Court for his/her committal to prison for contempt of Court.

The current legislation allows you to decide whether you wish for the breach to be dealt with within the criminal or civil jurisdictions.

TESTIMONIALS

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