Family Law Injunctions – Non-Molestation Orders and Occupation Orders

Domestic abuse was first defined in legislation in the Domestic Abuse Act 2021. It defines domestic abuse as between person aged 16 and over, personally connected to each other and defines abusive behaviour as:

• Physical or sexual abuse;
• Violent or threatening behaviour;
• Controlling or coercive behaviour;
• Economic abuse
• Psychological, emotional or other abuse;

The legislation also introduced new domestic abuse protection orders.

In family law injunctions, protection against domestic abuse is dealt with under the Family Law Act 1996 and is intended to stop any abusive behaviour and to make the victim feel safe. A breach of a non-molestation order is an automatic criminal offence.

Who can apply for an injunction?

a. Cohabitees;

b. Relevant child;

c. Associated persons:

• They are or have been married to each other.
• They are or have been civil partners of each other;
• They are cohabitants or former cohabitants.
• They live or have lived in the same household, otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder.
• They are relatives.
• They have agreed to marry one another (whether or not that agreement has been terminated);
• They have or have had an intimate personal relationship with each other which is or was of significant duration.
• They have entered into a civil partnership agreement (as defined by section 73 of the Civil Partnership Act 2004) (whether that agreement has been terminated).
• They are parents of a child together or have had/have parental responsibility for a child
• They are parties to the same family proceedings

Occupation Orders:

An Occupation Order sets out who lives in a family home if you are separated. It can be made for a fixed period of time, until a certain event occurs or until a further order is made.

When deciding whether to make an Occupation Order, the court must have consideration as to whether or not the Applicant or relevant child is at risk of significant harm. The case of B v B 1999 establishes the threshold that must be reached by the court and indeed, the court must have regard to Article 1 of the First Protocol, namely a person’s right to peaceful enjoyment of their possessions.

The factors considered by the court when making an Occupation Order are:

a. The housing needs and resources of the parties

b. The financial resources of the parties

c. The likely effect of making or refusing the order upon the health, safety, and

wellbeing of the Applicant and/or relevant child

d. The conduct of the parties

Balance of Harm Test:

The case of Chalmers v Johns sets out that the court must consider the balance of harm test before considering the factors set out within the Family Law Act 1996. If the court believes that the Applicant and/or relevant child is likely to suffer harm at the hands of the Respondent, an order must be made.

Non-Molestation Orders:

A Non-Molestation Order can set out that your abuser is not able to contact you, attend close to your home or place or work for example.

Applications for Non-Molestation Orders are usually made on an ex-parte basis. This means that your abuser will not be notified of the application until such time as the order is in place – this is done to protect the person applying for the order. The case of Re J 2000 indicates that a notice order does not infringe a person’s Article 6 right to a fair trial. This is because an on-notice return hearing is listed following the initial hearing, which provides the Respondent an opportunity to put forward their own representations.

Undertakings:

An undertaking is a formal promise to the court. An example of this would be to promise not to approach, contact, pester, harass, or intimidate a person or to not return to the family home.

If you require advice on anything contained within this blog please contact Susie Packer at susiepacker@msbsolicitors.co.uk.