Posted by familylaw on 1st October 2019

Amy answers the question – what is an injunction?

An injunction is a court order which compels someone to do or to refrain from doing particular acts. In family law there are two types of injunctions; non-molestation orders and occupation orders.

A non-molestation order is an order that prohibits your partner or spouse from using or threatening violence against you or your children, or intimidating, harassing or pestering you. It can contain very specific provisions depending on the particular type of harassment you are experiencing.

In deciding whether to make an order, the court must be satisfied that there is evidence of molestation and that you need the court’s protection. Molestation refers to any form of physical, sexual or psychological molestation or harassment that has a serious impact on your health and wellbeing or that of any relevant child. Molestation is not only defined as violent behaviour, it can also be other forms of behaviour.

An occupation order sets out who can live in the family home (or certain parts of it) and can also restrict someone from entering the area surrounding a home. An occupation order does not affect each person’s financial interest in the home, simply who can live in it. The court applies different tests depending on the relationship status of those involved and whether there is any legal right to occupy the home. The process is quite complex, and we will help you understand what applies in your situation.

Imran answers the question – so what can I actually do to protect myself and my children?

Sometimes going to court may not be necessary. A warning letter from us setting out the consequences of someone continuing their behaviour will work.

If court is necessary, this is when you can apply for a non-molestation order. In emergencies, such as where there is an immediate risk of harm, we can apply for ‘without notice’ injunctions. This means that the perpetrator will not be at court, at least for the first hearing. So, you could have some protection in place before the next hearing, which he or she will be directed to attend.

You can also apply for an occupation order as detailed by Amy. As well as regulating who can live at the family home this also deals with who should pay the mortgage or rent. Occupation orders are not usually made ‘without notice’ but they can give you and any children some much needed breathing space.

Sometimes the criteria may not be met for the court to impose a non-molestation order and/or occupation order. In this case, The Protection from Harassment Act 1997 offers protection to victims of harassment in the criminal courts; the harassment then becomes a criminal offence. The term ‘harassment’ can refer to causing the victim to become alarmed or distressed. Someone convicted of this criminal offence can also receive a restraining order to further protect the victim. Remember that any violence is a crime and you should always contact the police.

It is possible to apply to the civil courts for a restraining order under the same Act if, for example, the police are not prosecuting the perpetrator. In this case, you can also ask for damages from the perpetrator for the anxiety caused as well as for any financial loss arising from the harassment such as loss of income.

If you are on a lower income, we can grant you emergency legal aid. Depending on your financial circumstances, you may have to contribute towards the costs, but we will talk you through this. Your first appointment with us is always free.

We can also put you in touch with domestic violence organisations in Somerset who will give you practical support.

 

 

 

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