Sadly, many people find themselves in relationships, where they are subjected to abuse during, or after the relationship comes to an end. Abuse takes many forms, including physical, emotional, psychological, financial, gaslighting and controlling and coercive behaviour. As a result, a victim of abuse, and possibly their children, may be at risk of harm and therefore, they will need protection from their partner, a former partner, or indeed a relative for example (all of whom are within the category of people who can make an application under the Family Law Act 1996).
The most obvious way for a victim of abuse to get immediate protection, is to call the police, who can arrest and subsequently charge an abusive partner, under the criminal law. However, a victim of domestic abuse can also seek protection for themselves and their children, under the civil law, in the family courts, by applying for a non-molestation order and/or an occupation order.
If granted by a judge, a non-molestation order can prevent many forms of abuse, such as prohibiting an abuser from causing or threatening physical harm, or encouraging someone else from doing so, prohibiting intimidating or harassing behaviour, pestering a victim, communicating with a victim (directly or indirectly) or damaging, or threating to damage, the victim's property. A judge can also grant a non-molestation order preventing an abuser from coming within a certain distance of a victim's home, or workplace, for example.
Generally, non-molestation orders will not be granted for more than 12 months, although they can be extended.
If the abuser lives with the victim, a judge has the power to exclude the abuser from the property, even if it is registered in their sole name. Such orders are draconian and therefore, less likely to be granted, especially without the abuser being present in court to oppose the application, or where for example, the victim and/or their children may be at risk of immediate harm. Where however, the abuser has already left the property, it is often much easier to prevent them returning home.
How to apply for a non-molestation order (and occupation order)?
There is no fee for filing an application for a non-molestation (or occupation) order. However, it is necessary to complete and file a lengthy application and a detailed statement in support. Some victims of abuse choose to represent themselves in court, or seek help from domestic violence support groups. More often than not however, applicants seek legal advice from solicitors who are experienced in filing all the documentation in a timely fashion, as delay in doing so may prejudice their case.
Solicitors are better able to gauge, whether or not an application for a non-molestation order should be made on a without notice (ex-parte) basis to the abuser – for example if there is urgency, or if the victim would be put at risk if the abuser is warned of the application in advance – or if it is appropriate to serve notice of the intended application on the abuser, before the court hearing takes place.
An application for a non-molestation and/or occupation order is made to a local Family Court. The hearing will take place in private, so no member of the public can come into court to observe it.
After hearing the written and oral evidence, a judge will decide whether they will grant the application in full, or perhaps only grant some of the orders the victim applies for.
Breaching a non-molestation order or occupation order
If someone is subject to a non-molestation order and they breach its terms, they may be liable to pay a fine or, in the more serious cases, imprisonment. A judge can attach a power of arrest to an occupation order (a non-molestation order does not need a power of arrest, as it is a specific criminal offence to breach it), which means that if the abuser breaches it, the victim can call for police assistance and the police can arrest the abuser without a warrant for their arrest.
Can you apply to the Court to discharge the non-molestation order?
Someone who is subject to a non-molestation (or occupation) order is entitled to file their own application at court, to discharge or vary the order(s). Indeed, so too can the victim, if for example, the terms of the order prove to be too onerous, or because they have reconciled with their partner.
Service of a non-molestation order
Non-molestation and occupation orders must be served personally on the abuser (as soon as possible after being granted) to ensure they understand what they are to do, or alternatively, what they are prohibited from doing. Exceptionally, other methods of service are allowed. A solicitor (or the court) will instruct a process server to serve the order.
If you have experienced domestic violence or have received court paperwork accusing you of domestic violence, you may be unsure of where to turn to for advice. Our Family team can provide specialist advice to protect both you and your family and provide support and guidance through the process.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.