Domestic abuse does not simply mean physical violence. It is a term that covers a wide range of behaviour by someone you know, and which causes you harm. As well as being physical, domestic abuse can also be psychological, sexual, emotional and financial.
If you have been the victim of domestic abuse then the court can make protective injunctions known to protect you from further harm. Injunctions can forbid someone from doing certain things, e.g. being violent, or it can order someone to do certain things e.g. leave the home. There are two types of injunctions; Non Molestation Orders and Occupation Orders.
A Non Molestation Order can prohibit your spouse or partner from using or threatening violence against you or your children. It can also prevent acts of intimidation and harassment. It can be tailored to protect you from the specific abuse that you have been subjected to, whether physical violence or being harassed by text or via e-mail.
When deciding whether to make a Non Molestation Order, the court will take into account all of the circumstances of your case. The Order is likely to be made if it is necessary to secure the wellbeing, health, safety and protection of you and/or your children.
An Occupation Order can define who has the right to remain living at the family home and it can exclude someone from occupying it. It can also extend to preventing that person from coming within a certain distance or specified area around your home.
Occupation Orders can also allow you to return to the property if you have been locked out, and they can also order someone to continue paying the mortgage, rent or bills.
These types of orders are regarded as drastic because they can essentially ban someone from entering their home even if they are the owner or tenant of the property, and therefore have a legal right to be there.
When deciding whether to make an Occupation Order, the court will consider various factors including your housing needs and financial resources, as well as the likely effect any order, or the lack of an order, would have on either person or any children that might be involved. The court is therefore likely to assess the harm that you and any child might suffer an order is not made, and also the harm that the other person and any child might suffer if it is.
The type of order that you can apply for will depend on your relationship with the abuser and how you are both legally entitled to occupy the property.
You can apply for either a Non Molestation Order or an Occupation Order (or both) to be made against your abuser if you are an ‘associated person’ and fall into one of the following categories:
- You are/were married or in a civil partnership;
- You are/were engaged or had agreed to form a civil partnership;
- You are relatives, including but not limited to children, parents, siblings and cousins;
- You are/were living together or within the same household; or
- Have/did have parental responsibility for the same child.
These are some of the most common ‘associated persons’ however even if you do not fall into one of these categories you still may be eligible to apply for an Order. Please contact a member of our Family Team for a free confidential initial chat to find out whether you might be eligible to apply.
Your application needs to be made at your local family court.
You must complete an application form (FL401) and submit this to the court along with a signed witness statement which clearly sets out details of your relationship and the incidents of domestic abuse that have taken place, including when the abuse started, the most serious incident and the most recent incident of abuse. There is no court fee to make the application.
The person applying to the court for an Order is known as the ‘Applicant’ and the other person is known as the ‘Respondent.’
If you or your children are at imminent risk of significant harm then the court can make a Non Molestation Order “without notice” to the Respondent i.e. without the abuser attending court. However this will only be for a short period of time, and the court will list the matter to be heard at a further hearing as soon as possible to give the Respondent the opportunity to respond. If the Respondent is defending the allegations then you may have to give evidence. The court will then consider all of the information available to them before deciding whether to make a further order.
The Respondent must be personally served with a copy of the Order for it to be effective and enforceable.
Breach of a Non Molestation Order is a criminal offence. In these circumstances you should contact the police, who can arrest the abuser and bring him or her back before the court.
A Power of Arrest can be attached to an Occupation Order if the court is satisfied that your abuser has used or threatened violence against you.
A Respondent who is found to have breached an Order may be fined, committed to prison or given a suspended sentence of imprisonment.