Non-Molestation Order and Occupation Order
Unfortunately, many victims of Domestic Abuse suffer for years in fear of the misconception that by ending the relationship they will be at further risk of harm. They often feel that they would not be adequately protected. If you are suffering from any form of Physical Abuse then there are remedies which are available to you within the Family Court. You can obtain an Order which will prohibit violence and harassing behaviour towards you. You can also obtain an Order to prevent your partner from living in the family home until the matter is resolved by the courts by way of a final Order.
These Orders are available to you if you are associated with the person against whom you seek the Order. This relates to:
- parties who are or were married,
- parties who live together or have lived together,
- parties that are related,
- parties that have a child together
A Non-Molestation Order can be made to prevent a person from using or threatening physical violence or to prevent a person from harassing, pestering or intimidating you. You can make the application on behalf of yourself and/or the children that reside in the home on the basis that you are at risk of “significant harm” from the person against whom you are making the application.
A Non-Molestation Order can be obtained by making an urgent application to the Court, known as “an ex-parte application.” This means that the Order is made before your partner has any knowledge of the application. Once an Order is made, it is then served upon your partner who must comply with the Order -this gives you immediate protection. The matter will then be bought back to court within 14 days of the Order being made, so that the Court can review the situation. Both parties should be in attendance at this hearing. If your partner does not attend, then provided that you can prove that you have served the application and notice of hearing upon him, the Court are likely to make a Final Order in his or her absence. If your partner does attend at the second Hearing, hopefully a Final Order can be made. A Non-Molestation Order will usually remain in force for 6 months but can last for a year depending upon the circumstances.
A Non-Molestation Order can also be obtained by making an application on notice. This means that you file an application which is then served upon your partner together with notification of a Hearing date. Your partner can then attend the Court Hearing and challenge the evidence before the Court. An Order can still be made by agreement but, if the evidence is challenged, then the Court will list the application for a Final Hearing.
An Occupation Order is used when the future occupation of a property is in dispute. If your partner is violent towards you or the children, or in the presence of the children, then you can obtain an Order which will require your partner to leave the home.
There are many factors that need to be considered when making an Occupation Order. The most important factor is whether you or any relevant child is likely to suffer significant harm attributable to the conduct of your partner. Other factors include:
- The housing needs of you, your partner and the children of the family and what other housing resources are available to each of you;
- The financial circumstances of each of you;
- What effect the Occupation Order would have upon each of you and the children of the family;
- The conduct of each of the parties;
The Order will last for a fixed period of time and can often remain in force until the financial proceedings have been agreed.
Beaching a Non-Molestation Order is a criminal offence and thus you can be arrested and imprisoned for up to 5 years. Breaching an Occupation Order can also result in criminal sanctions if such powers are attached to the Order. This is usually one of the key reasons why a party will contest such an application as they do not wish to be subjected to such stringent conditions and ultimately this will result in escalated legal costs. A way around this could be to accept an Undertaking.
An Undertaking is a promise to the Court, as to future conduct, given by your partner. Undertakings can, in certain circumstances, take the place of a Court Order, and are often worded the same as a Non-Molestation Order and/or Occupation Order. Where an Undertaking has been accepted by the Court and subsequently broken by the person who gave it, there are serious consequences which can include imprisonment or a fine. An Undertaking will only be accepted by the Court if it will adequately protect you. If not, then an Order will be made. An Undertaking will be for a fixed period of time, usually 6 months. Undertakings, when offered by your partner, are done so on the basis that no admissions of the allegations are made and that the Courts have not made any Findings of Fact against a Respondent in relation to allegations is made by the Court.
Powers of Arrest
A Non-Molestation Order will always be an arrestable offence however in respect of an Occupation Order, there will need to be a specific provision for Power of Arrest on the face of the Order.
A copy of a Non-Molestation Order and/or an Occupation Order has to be served on the Police. If such an Order is breached, a Police Officer must arrest a Respondent. The Respondent is then usually kept in police custody and will be brought before the Magistrates Court within 24 hours. It is then for the Court to decide what punishment the Respondent should face. If an Occupation Order with a Power of Arrest attached is breached, then the Respondent will be taken to the County Court. If the Magistrates Court do not take any further action, it is possible for an application to be made to the County Court for a Committal. (Such an application has to provide precise details of the breach(es) alleged. The committal application is served on the Respondent and then heard by the Court. The Court has the power to fine or imprison the Respondent if the Court finds that such a breach has occurred.)