If you have been subjected to domestic violence, you may be entitled to apply for a Non-Molestation Order. You may also be entitled to apply for an Occupation Order to exclude the perpetrator from the home in which you reside.
A Non-Molestation Order is designed to protect you from violent and abusive behaviour. In general terms, if granted, it can forbid the other party from threatening or using any unlawful violence towards you, communicating with you by any means, coming near the property in which you are residing and/or damaging your home or belongings and instructing anyone else to do so.
You can only make an application for a Non-Molestation Order where the other party is an “associated person”. We can tell you whether you can apply at your initial meeting with us. However, generally speaking, a former partner (dependent upon the length and intimacy of the relationship) or family member will usually be an associated person.
You should bear in mind that the definition of domestic violence goes further than physical violence. Emotional harm, threatening behaviour and abuse can also constitute domestic violence and we will discuss this with you at the first meeting.
If you are eligible to apply for a Non-Molestation Order, we will take detailed instructions from you about the history of the matter and the events that have occurred. We will then take steps to prepare your application and apply to the court
for an emergency order to protect you (and your children, if applicable) from the violent and/or abusive behaviour.
In the first instance, we will usually make the application without informing that you are making the application to the court. If the court grants the order, we will then instruct a process server to collect the order from the court and serve it upon the other party in accordance with your instructions.
In most cases, the court may grant the Non-Molestation Order at the first hearing (at which the other party will not be present) but a further hearing will usually be listed on another day at which the other party will have the right to attend and oppose the application if they wish to do so. However, some courts do not automatically list a further hearing and will instead only list a further hearing to consider the order if the other party requests it.
An Occupation Order can regulate how a person exercises their right to occupy a property. The court is able to make an order restricting a person’s right to occupy a property in which they have an interest. This might be by restricting the person to occupation of certain defined parts of the home or by preventing them from occupying the home altogether.
In most cases, the order will usually apply to the family home in which the parties had been residing together.
You may be sharing your property with the other party who has been perpetrating the violence or abuse. You may want to stay in your home but feel that you have no option but to leave to escape the abusive behaviour. However, you may be entitled to apply for an Occupation Order which, if granted, can compel the other party to leave the property and prevent them from returning.
An Occupation Order is a very draconian order since it can effectively restrict the other party’s legal right to occupy their own property. As a result, the court will be reluctant to grant the order unless there is a real risk of violence or harm. Furthermore, the Court will very rarely grant an Occupation Order without first hearing from the other party.
When determining whether to grant the application, the court will refer to the “balance of harm” test. To satisfy this test, you must demonstrate that the harm which you and any child of the family might suffer will be greater if the order is not made than it would be to the other party if the order is made.
The court will also take into account other factors such as the financial and housing needs and resources of both parties and any children.
If the court is not satisfied that a total exclusion from the property is warranted, an order made be made regulating occupation of the family home such that use of the rooms can be divided between you or a timetable regulating occupation at certain times can be implemented.
If you are being subjected to abuse, violence, threats or harassment please contact our family law specialist in confidence. We can arrange to see you at very short notice and it is important that you act quickly so that we can obtain these protective orders for you.
Free information meeting
We are pleased to offer all potential new clients a free, no obligation information meeting.
The meeting will not normally be longer than 20-30 minutes and is designed to give us the opportunity to take a little bit more information from you and give you a general overview of what we can do to help and how much it might cost.
We find that this works very well because it allows you to make an informed decision about whether to engage our services and gives you the opportunity to establish an immediate relationship with us in person.
We are able to offer very competitive, cost effective and flexible packages to suit your individual needs dependent upon how much or how little you would like us to do for you.