Violence within the home is not uncommon. A relationship may break down due to such behaviour. Physical violence is a criminal offence, yet prosecution under the criminal law may be inadequate in some cases and therefore there are civil remedies which may be more appropriate.
A Non-Molestation Order can be obtained to prohibit violence and harassing behaviour, whilst an Occupation Order is often pursued, where the persons concerned live in the same home, and one person can be ordered to leave the home, not then being able to return to it.
The Family Law Act 1996 (Part Iv)
A person can apply for an Order if they are associated with the person against whom they seek the Order.
You are associated if:
- The parties concerned are or were married
- The parties (one male and one female), live together or have lived together
- The parties are related
- The parties live, or lived, at the same residence, for example, one being a tenant
- The parties have a child together
Primarily, there are two types of Orders that can be made under the Family Law Act 1996.
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 someone.
The Applicant or relevant child must be at risk of “significant harm” from the Respondent.
There are two ways of obtaining a Non-Molestation Order.
- The first is by way of an urgent application to the Court on what is known as “without notice basis.” This means that the Order is made before the other party has any knowledge of the application. Once an Order is made, it has to be served upon the other party. An Order is only effective and enforceable once served upon the party named in it. The Applicant will need to return to the Court within a few days of the Order being made in order that the Court can review the situation. Both parties should be in attendance at the second Hearing. If the Respondent does not attend, then provided service of documents can be proven, the Court are likely to make a Final Order in his or her absence. If the Respondent 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.
- Secondly, an application may be made on notice. Both sides are informed of the Hearing date and the Respondent is served with the application in advance of the Hearing taking place. The Respondent has the opportunity to attend the Court Hearing and challenge the evidence before the Court. An Order can 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. One person could effectively be required to leave the home because of his/her violence behaviour towards the other person or the effect that his/her presence is having on the children.
The Court shall have regard to all the circumstances, including:
- The housing needs and housing resources of each of the parties and of any relevant child;
- The financial resources of each of the parties;
- The likely effect of any Order (or of any decision by the Court not to exercise its powers) on the health, safety or well-being of the parties and of any relevant child;
- The conduct of the parties in relation to each other, and:
- Whether the Applicant or any relevant child is likely to suffer significant harm attributable to the conduct of the Respondent, and;
- Whether the harm likely to be suffered by the Respondent or any relevant child if the provision is included is as great or greater than the harm attributable to the conduct of the Respondent which is likely to be suffered by the Applicant or any relevant child if the provision is not include.
An Occupation Order usually runs for a fixed period of time, quite often until financial proceedings have been resolved.
Agreement can be reached whereby the Respondent may pay the mortgage and/or utilities secured upon the property until a certain date
An Undertaking is a promise to the Court, as to future conduct, given by the Respondent. 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 the party applying for an Order will be adequately protected. 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 a Respondent, are done so on the basis that no admissions of the allegations are made and no Finding of Fact against a Respondent in relation to allegations is made by the Court.
Powers of Arrest
A Power of Arrest can only be attached to an Occupation Order. Changes in the law since July 2007 now mean that a breach of a Non-Molestation Order will always be an arrestable offence and therefore it is unnecessary to have a separate Power of Arrest attached
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.)
Funding the Application
A Legal Aid Certificate is applied for on an emergency basis. A client may have a contribution to pay towards the Certificate which is payable whilst the proceedings continue on a monthly basis.
The overall costs are likely to be in the region of £1,500 to £2,500.