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Domestic Abuse

Domestic Abuse

Domestic abuse is any incident of or pattern of incidents of controlling, coercive or threatening behaviour, abuse or abuse between those aged 16 or over who are or have been intimate partners or family members, regardless of gender or sexuality.


This can encompass, but is not limited to, the following types of abuse:

Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
 

Coercive behaviour is an act or pattern of assault, threats, humiliation and intimidation or other abuse used to harm, punish or frighten the victim. 

Procedure

Non-Molestation Order 

A Non-Molestation Order means an order containing either or both of the following provisions; 

  • a provision prohibiting the respondent from molesting another person who is associated with the respondent  

  • a provision prohibiting the respondent from molesting a relevant child

 

“Molesting” can include all terms set out above in the definition section. Commonly it refers to violence (or threat of), intimidation, pestering, harassment and communication (whether direct or indirect, including on social media). 

 

The purpose of a Non-Molestation Order is to offer protection from many forms of behaviour constituting domestic abuse. 

 

To support an application for a Non-Molestation Order, evidence must be produced to the Court. If such an Order is made, it is usually given either 6 or 12 months. 

 

Who can apply for a Non-Molestation Order? 

To apply, you need to be considered as “associated persons”. Persons are associated if; 

  • they are or have been married to each other 

  • they are or have been civil partners

  • they are cohabitants or former cohabitants

  • they live in the same household other than 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 

  • they have entered into a civil partnership agreement

  • they have or have had an intimate personal relationship with each other which is or was of significant duration 

  • concerning a child, they are a parent of that child or have or had parental responsibility for the child 

  • they are party to the same family proceedings

Consequences of breaching a Non-Molestation Order 

A breach of a Non-Molestation Order is a criminal offence punishable by up to 5 years imprisonment, a fine, or both.

 

Alternatively, an Applicant may prefer to keep matters in front of a civil/family Court as they may not wish to criminalise an ex-Partner or relative. If this is the case, a breach constitutes “contempt of Court”, punishable by up to 2 years of imprisonment or a fine. 

Occupation Order 

An Occupation Order regulates the occupation of the family home. It can include; 

  • enforcing the applicant’s entitlement to remain in occupation as against the other person

  • require the respondent to permit the applicant to enter and remain in the dwelling house or part of the dwelling house

  • regulate the occupation of the dwelling house by either or both parties 

  • prohibit, suspend, or restrict the exercise by him of his right to occupy the dwelling house 

  • if the respondent has matrimonial home rights in relation to the dwelling house and the applicant is the other spouse, restrict or terminate those rights 

  • require the respondent to leave the dwelling house or part of the dwelling house

  • exclude the respondent from a defined area in which the dwelling house is included

 

If such an Order is made, it is usually given either 6 or 12 months. 

 

Who can apply for an Occupation Order? 

  • someone who is entitled to occupy the home by virtue of either a beneficial estate or interest or contract or has matrimonial home rights 

  • a former spouse with regards to the former matrimonial home or intended former matrimonial home or a former civil partner with regards to the former partnership home or intended partnership home

  • a cohabitant or former cohabitant with no existing right to occupy the dwelling house considered as the home or intended to be the home 

  • a spouse or civil partner or former spouse or civil partner who is not entitled to occupy the dwelling house that is or was the matrimonial or partnership home

  • a cohabitant or former cohabitant who is not entitled to occupy the dwelling house that they cohabit or cohabited

Balance of Harm Test 

The Court must balance up the harm which the applicant or any relevant child will suffer if the Order is not made against the harm that the Respondent or relevant child will suffer if the Order is made.

Discretion of the Court 

If the applicant is not successful on the balance of harm test, the court still has discretion to make the Order sought. In doing so, the Court shall have regard to all the circumstances including;

  • the housing needs and housing resources of each of the parties and any relevant child 

  • the financial resources of each of the parties

  • the likely effect of any order, or 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

  • and the conduct of the parties in relation to each other and otherwise

Ancillary Orders 

If the Court makes an Occupation Order, they can also impose additional orders to the occupation order, including to; 

  • impose on either party obligations as to; 

    • the repair and maintenance of the dwelling-house or 

    • the discharge of rent, mortgage payments or other outgoings affecting the dwelling-house

  • order a party occupying the dwelling-house or any part of it, to make periodical payments to the other party in respect of the accommodation, if the other party would be entitled to occupy the dwelling-house by the virtue of a beneficial estate or interest or contract

  • grant either party possession or use of furniture or other contents of the dwelling-house 

  • order either party to take reasonable care of any furniture or other contents of the dwelling-house

  • order either party to take reasonable steps to keep the dwelling-house and any furniture or other contents secure 

 

Consequences of breaching an Occupation Order 

If the Court makes an Occupation Order and it appears to the Court that the Respondent has used or threatened violence against the Applicant or a relevant child, it shall attach a power of arrest to one or more provisions of the order unless satisfied that in all the circumstances of the case, the Applicant or child will be adequately protected without such a power of arrest

A power of arrest is a warning to the respondent that if the terms of the order are breached then, s/he will be arrested and taken back to the court where the order was made. A breach of such an Order constitutes “contempt of Court”, the punishment explained above. 

Application Process 

An application for either a Non-Molestation or Occupation Order is filed at Court with a Witness Statement and draft Order attached to the application for the Judge to consider. The application can either be filed “without notice” or “with notice”. 

You would file your application “without notice” if you are at serious risk of harm. It is thought that giving the respondent notice of such an application would exacerbate an already dangerous situation.

 

An interim Order can be made “without notice”. It is very rare for an Occupation Order to be made “without notice” as it deprives a respondent of their home and proprietary rights.

If a “without notice” Order is made, it must have a fixed end date and should not normally exceed 14 days. Such Orders should also specify the date, time and place of the Return Hearing, where the Respondent will be given the opportunity to give his submissions on the application made. The Judge will then determine if the Order made “without notice” is to continue “with notice” and if so, what the duration of such Order is to be. 

Either way, your application should be issued by the Court and then sent back to you to have served on the Respondent through a 3rd party agent, such as a Process Server, so the Court can be sure that the Respondent has 

been made aware of your application and any Orders.

 

This step must be taken as Orders only become enforceable once the Respondent is made aware of their existence. 

If at the return hearing, the Respondent makes it clear he disputes the allegations made and therefore the making of any Order, a Final Hearing will be listed.
 

The Judge may therefore give directions at this Hearing as to what the parties are to do next in anticipation of the Final Hearing i.e. Respondent to file his Statement in Response, Witness evidence to be obtained, medical or other expert evidence etc. 

If either a Non-Molestation Order or Occupation Order (with power of arrest) is made, a copy should be given to the local Police Station with a Statement of Service, proving that the Respondent has been made aware of such 

Order/s. 

 

If an Occupation Order is made, a copy of it should also be sent to the mortgage provider or landlord.

kellygrigg@richardnelsonllp.co.uk

Image by Annie Spratt

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