HOW CAN YOUR BARRISTER HELP YOU AS A LITIGANT IN PERSON
INFORMATION ON NON-MOLESTATION AND/OR OCCUPATION ORDERS
RESPONSIBILITY OF A LITIGANT IN PERSON
Important note: Please note that this information is not intended to be legal advice. You are advised to seek legal advice.
This information provides an overview of a non-molestation and/or occupation order.
A Non-Molestation Order prevents the other person from using or threatening violence against you (or your child) or intimidating, harassing or pestering you. This is to ensure your health, safety and well-being and/or that of a child.
A breach of a Non-Molestation Order is an arrestable offence and now carries a maximum sentence of 5 years imprisonment.
Domestic Abuse can take many forms including physical, emotional, psychological, sexual or financial abuse
An Associated Person
When considering making an application for a Non-Molestation Order and/or an Occupation Order, the requirement is that you must be ‘an associated person’ which are as follows:
Married to or in a Civil Partnership with someone who is domestically abusive to you
You are or have cohabited with someone who has been domestically abusive to you
Used to be married to or in a Civil Partnership with someone who is domestically abusive to you
Are or were engaged to someone within the last three years who has been domestically abusive to you
You are related to someone who has been domestically abusive to you
You are in family law proceedings and a party to those proceedings was domestically abusive to you
You have been in an intimate relationship of a significant duration with someone who has been domestically abusive to you
You have a child or children with someone who has been domestically abusive to me.
An Occupation Order
An Occupation Order controls who can live in a property. It can also restrict the person from entering a certain area.
If you do not feel safe living with the other person or you have left because of violence or intimidation and want to return without the other person being there, the order you would apply for is an Occupation Order.
You are entitled to occupy a dwelling-house by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving you the right to remain in occupation, OR you have home rights in relation to a dwelling-house AND the dwelling-house is or at any time has been the home of the person entitled and of another person with whom he is associated, OR was at any time intended by the person entitled and any such other person to be their home.
This means that you can apply if:
You own or rent the home and it is, was, or was intended to be shared with a spouse, civil partner, cohabitant, family member, person you are engaged to or parent of your child
You do not own or rent the home but you are married or in a civil partnership with the owner and you’re living in the home
Your former spouse or civil partner is the owner or tenant, and the home is or was intended to be your shared matrimonial home
The person you cohabit or cohabited with is the owner or tenant, and the home is or was intended to be your shared home
The difference between a With Notice and a Without Notice application
If you want to make an application for a Non-Molestation or Occupation Order, you should think carefully whether notice should be given to the other parties in the case.
If you are in immediate danger, an application can be made to the court on the same day without the Respondent being there. This is called a Without Notice (also known as ex parte) application. The court must consider:
whether or not you are at risk of significant harm;
whether you will be prevented or deterred from applying if you have to wait; or
whether the Respondent is avoiding being served notice to appear before the court.
If the court grants a without notice order, the court will usually list the matter for a full hearing once the other side has been served with notice.
Making an application for a Non-Molestation Order and/or Occupation Oder
If you decide to make an application for either order and complete the relevant forms, the ‘Support Through Court’ is available in a Family Court near to you.
Your barrister can provide you with legal advice and guidance on the preparation of your witness statement and evidence to support your application. Once you have completed the form and sought advice on your evidence and preparation of a witness statement, it should be submitted to your nearest Family Court.
There is no fee to be paid to make an application for a Non-Molestation or Occupation Order
Evidence required for a Non-Molestation and/or Occupation Order
You will need to make a statement to the court about the type of abuse you have experienced. You should be as precise as possible about all the ways you have been harmed, the dates and times (if you have them) and the effects on you and, if relevant, your child.
In this statement, it is important that you provide the court with as much evidence as possible of the harm caused by the Respondent’s behaviour.
If you have kept a record of past events, or you have independent evidence such as police reports or medical records, it is useful to say this in your statement and try and provide copies of this.
In your statement, you should also explain why you’re making this application urgently and without telling the Respondent (if it is a Without Notice application).
One reason for this could be because you fear the reaction of the Respondent if they were to find out what you were doing.
You should end your statement with a Statement of Truth. You should also then sign and date the statement.
Your barrister can help you with legal advice in the preparation of your evidence and statement.
Service of an Order
Personal service of an order is required. This means that you should arrange for a printed copy to be handed personally to the named person.
The injunction will not be effective if there is no proof that the named person received it.
If you do not feel able to serve the Order yourself, Court staff should be able to provide you with a list of people who are authorised to serve Court orders and to provide a ‘certificate of service’. There is usually a charge.
It is vital that you make arrangements for serving the Order, as an injunction cannot be enforced unless the respondent knows about it.
A copy of the Order must also be delivered to your local police station. The form must be served together with a statement showing that the Respondent has been served with the order or otherwise informed of its terms.
If the court makes an Occupation Order, you must serve a copy of this by first class post on the mortgagee or landlord of any relevant property.
A Return Date
Whenever the court makes either a Non Molestation Order or an Occupation Order without notice (ex parte), the court should set what is known as a return date. Ex parte orders only tend to be made temporarily until the next hearing.
This is a hearing where the other person has the opportunity to state if they agree with the order (or why they feel that the Order should not be made fully).
The named person will be present and will be able to speak to the Judge, either in person or using a representative.
At this hearing the court has the option to:
continue the Orders that have been made and set a timescale for the Orders to be terminated;
discharge the Orders;
continue the Orders until a further hearing but request more evidence or further statements;
accept an undertaking from the named person in place of the Order.
The Court may think it appropriate for cross-undertakings to be made for both parties.
The court sometimes suggests that, instead of an injunction, the named person ought to consider providing an undertaking (a solemn promise) to the court with similar terms to that in the Order.
This is supposed to have the same strength as a court order and breach of an undertaking constitutes contempt of court.
If the named person breaches an undertaking, you would need to return to Court and apply for their committal for contempt of court.
Enforce an Occupation Order or a Non-Molestation Order
Breach of a Non-Molestation Order is an arrestable offence and the person named could be found guilty of a criminal offence.
An Occupation Order may have a power of arrest attached to it (at the discretion of the court). This would allow the police to arrest the respondent if there is reasonable cause to suspect that the Order has been breached.
If you believe that a Non-Molestation or Occupation Order has been breached, we would advise you to call the police.
A Non-Molestation Order and Occupation Order is recognised and enforceable in other Member States of the EU.
If you are a victim of domestic abuse or there is a child protection concern you may be eligible for Legal Aid.
Chambers of Helen Alexander-Direct Public Access-Family Court Barrister