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Domestic Abuse

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Domestic abuse is when someone in a close relationship with you behaves in a way that causes you physical, mental or emotional damage.

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What is Domestic Abuse?

Domestic abuse does not solely have to be physical violence. It includes any incident of threatening behaviour and can be psychological, physical, social, financial or emotional.

 

Some of our frequently asked questions can be found below:

What is a non-molestation order?

A non-molestation order prohibits your partner or spouse from using or threatening violence against you or your children, or intimidating, harassing or pestering you. It can contain very specific provisions depending on the particular type of harassment happening to you.

Who can apply?

To apply for a non-molestation order you must be an associated person, which is defined in the applicable legislation. Former and current spouses, civil partners and cohabitants are included, as well as fiancé(e)s, relatives, people living in the same household, the parents of children in the house and those who have been in intimate personal relationships of significant duration. Your family lawyer will be able to advise you whether
you can apply.

What is the procedure?

The person applying to court for the injunction must complete a form and a witness statement setting out in detail what has taken place. Although usually the other person is told if a court application is made against them, this won’t be necessary if your safety or the safety of any children is at risk. The person asking the court to help is the applicant and the other person is the respondent. Usually, the respondent will prepare a witness statement in response to yours.

How does the court decide?

In deciding whether to make an order, the court considers the health (mental and physical), safety and well-being of the applicant or any relevant child. It must be satisfied that there is evidence of molestation and that the applicant or children need protection from the court. Molestation involves any form of physical, sexual or psychological molestation or harassment that has a serious impact on the health and well-being of the applicant or any relevant child. Molestation is not only defined as violent behaviour, it may be other forms of behaviour.

Any non-molestation order the court makes will contain a list of things that the respondent is prohibited from doing. The order can last either for a specified period of time or indefinitely. Breach of a non-molestation order is a criminal offence and the police can arrest someone who is disobeying an order.

What is an occupation order?

An occupation order sets out who can live in the family home (or certain parts of it) and can also restrict someone from entering the area surrounding a home. An occupation order does not affect each person’s financial interest in the home, simply who can live in it.

Who can apply?

Former or current spouses, civil partners or cohabitants, or people with a legal entitlement to occupy the property, such as an owner or tenant, can make an application to court for an occupation order. The person asking the court to help is called the applicant and the other person is the respondent.

What is the procedure?

The applicant must complete a court form and provide a witness statement setting out in detail the reasons why they are seeking the order. Usually, the papers will be sent to the respondent, who has a chance to reply by preparing his or her own witness statement. The court will list a date and time for a hearing to decide what should happen.

How does the court decide?

The court applies different tests depending on the relationship status of the people involved and whether the applicant has any legal right to occupy the home. For certain categories of applicant, the court will apply a ‘balance of harm’ test, in which it balances whether any person or child is likely to suffer significant harm if an order is or is not made. In other cases the court must exercise its discretion taking into account all the circumstances. The process is quite complex and your family lawyer will be able to help you understand what applies in your situation.

The order

The order that the court makes will say who can live in the home and who is excluded from it. It can also impose obligations relating to the repair and maintenance of the home, or to payment of the rent or mortgage. The length of time for which the order will last depends on your particular circumstances and is usually 6 or 12 months, but may be renewable.

Breach of an occupation order is not a criminal offence, but a power of arrest can be attached to the order, allowing the police to arrest the person in breach.

Undertakings

When considering either a non-molestation order or an occupation order, it is possible to give undertakings, which are binding promises to the court, instead of having the court make an order. The difference is that breach of an undertaking is contempt of court, which can be punished by committal to prison, but it is not a criminal offence and no power of arrest can be attached.

If you're not sure if we can cover your case, please don't hesitate to get in touch with us and we can discuss your specific needs.

How can we help?

Our Family team are here to help you and offer specific advice based on your circumstances. It may be possible to apply to the Family Court for an order formerly known as an injunction, to help protect you.

There are two types of orders:

  1. Non-Molestation Order
  2. Occupation Order

Non-Molestation Order prohibits your partner or spouse from using or threatening abuse against you or your children

Occupation Order sets out who can live in the family home (or certain parts of it) and can also restrict how close an individual may come to you

What can I expect to happen?

In order to apply to the Family Court for a non-molestation/occupation order you need to complete a form and a witness statement setting out in detail what has taken place. We are here to support you and help with this. If you are the person asking the court for help you are the applicant and the other person is the respondent. Usually the respondent will prepare a witness statement in response to yours.

The court will decide whether to make an order by considering the health (mental and physical), safety and well-being of the applicant and any relevant children. The court must be satisfied that there is sufficient evidence and that the applicant or children need protection from the court.

A non-molestation order, when granted will last for a specified period of time. Breach of a non-molestation order is a criminal offence and the police can arrest someone who is disobeying an order.

The length of time for which an occupation order will last depends on your particular circumstances, it is usually 6 or 12 months, but may be renewable. Breach of an occupation order is not a criminal offence but a power of arrest can be attached to the order, allowing the police to arrest the person in breach.

How much will it cost me?

Legal Aid is still available for domestic abuse cases, although it is means and merit tested and will be discussed at your initial consultation.

Non-Molestation and Occupation Orders

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  • Lexcel Accredited
  • Collaborative Family Lawyer
  • Resolution Specialist
  • Family Law
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  • Children Law
  • Mental Health Trubunal
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