There are two main types of injunctions governed by the Family Law Act 1996 (FLA 1996); namely, these are as follows:
- A non-molestation order.
- An occupation order.
Requirements
In order to apply for either of the above orders, you must be an “associated person” of the respondent (the person you are making the order against) and one of the following must be true:
- You are or have been married to or civil partners of each other or have agreed to marry/enter into a civil partnership.
- You have cohabited together.
- You have lived together in the same household in a family scenario.
- You have had an intimate physical relationship of significant duration.
- You are parties in the same family proceedings.
- In relation to a child, you are both parents or have had parental responsibility.
Non-molestation order
A non-molestation order is often granted to prevent an associated person from causing you or your children harm. This covers the use or threats of violence but also prevents harassment and pestering.
These orders can be applied against:
- A spouse, or ex-spouse.
- A civil partner, or previous civil partner.
- A fiancé(e) or ex-fiancé(e).
- A family member.
- Someone who you live with, or used to live with.
- The father or mother of your children.
Once a non-molestation order has been obtained, an automatic power of arrest is attached to the injunction, carrying a maximum sentence of 5 years in prison. They typically last between 6 – 12 months, depending on the circumstances. There is no Court fee to apply for a non-molestation order.
Note – In the recent case of DS v AC [2023], it was cited by Mrs Justice Lieven that there had been a “significant growth in the number of such (non-molestation) applications during the Pandemic” and that a large proportion of the applications are made without notice. Mrs Justice Lieven sought to remind us of the “very strict criteria for the making of such orders ex parte (without notice)”. Mrs Justice Lieven’s obiter comments serve to remind us of the need for careful consideration before making this type of application.
Occupation order
An occupation order regulates who can, or cannot, live in the home or certain parts of it. They are usually used in the context of domestic abuse allegations and give the Court the power to suspend the respondent’s right to occupy their own property. This can be a total exclusion from accessing the property, or just certain parts of it.
The Court will use the “balance of harm” (S33(7) FLA 1996) test to consider the harm caused to the applicant, the respondent and/or the children, if the occupation order is or is not made. The Court will likely make an order where one of the parties or the children are likely to suffer significant harm.
The Court will also consider:
- The housing needs and resources of each party and/or the children.
- The financial resources of each party.
- The effect of any order on health, safety and wellbeing of each party and/or the children.
- The conduct of each party.
Unlike non-molestation orders, occupation orders do not automatically have a power of arrest attached to the injunction. However, the issue of a warrant for the arrest of the respondent can be applied for, in circumstances where the respondent has not complied with the order.
The length of an occupation order tends to be granted for 6 months but this depends on which section of the FLA 1996 the application is made under. It may also be extended on one or more occasions for a further specified period, not exceeding 6 months. As with non-molestation orders, there is no Court fee to apply for an occupation order.
Considerations
Recent Practice Guidance highlights that FLA 1996 injunction applications have steadily increased “by about 50%” in the last 10 years, adding strain to an already overwhelmed Court system. However, this is not to say these applications should not be made. Sometimes these applications are absolutely necessary but clearly careful consideration should always be given to the merits of such an application, in each individual case.
Family Law Solicitors Guildford
At Gordons Partnership, our team has extensive experience supporting clients with their injunctions. We understand that whether you require a non-molestation or occupation order, you want to protect yourself at a difficult time. Therefore, we draw on our knowledge of this complex area of law and do all we can to support you.
To speak to our family law team today, please call 01483 451900 or email sols@gordonsols.co.uk.
About the Author
Martin Philip
Trainee Solicitor
- Tel: 01483 451 900
- Email: martin@gordonsols.co.uk