Non-molestation and Occupation orders are court orders that are typically issued to provide legal protection to those who are experiencing violence, threatening behaviour or intimidation from an abuser. Both of these orders aim to protect individuals from further harm and they promote the safety of the individual and/or any relevant child. If you are suffering from domestic abuse, we strongly recommend speaking with a solicitor to ensure the best legal advice is provided given to your specific circumstances and to help you in your current situation in the safest possible way.
Domestic abuse includes not only actual or threatened violence, but also another form of treatment called ‘molestation’. Molesting is not defined within the Family Law Act 1996 (FLA 1996) but this can include a range of behaviours including but are not limited to:- physical or emotional harm, threats, swearing, shouting, persistent messages/calls and stalking which all significantly affect a person’s privacy. Molestation can also be committed indirectly through the use of social media, through the use of a third party, abusive messages/calls, stalking and making threats to an individual. These types of behaviours are now classified as ‘controlling/ and or coercive behaviour‘ and have been a criminal offence since the Serious Crime Act 2015.
What is a Non-Molestation order?
A non-molestation order is a court order prohibiting a person (the respondent) that is associated with the applicant (the person applying for the order) from “molesting” them and/or any relevant children.
Do I need evidence to apply for a Non-Molestation order?
To apply for a non-molestation order evidence must be provided including:-
- Evidence the need for protection for the applicant and/or any relevant child.
- The order is needed to prevent the further domestic abuse towards the applicant and/or any relevant child.
What are the factors the court must consider before granting a Non- molestation order?
In deciding whether to make an order, the court considers the health (mental and physical), safety and well-being of the applicant and/or any relevant child. The court must be satisfied that there is evidence of molestation and that the applicant or children need protection from the court. Molestation involves any form of physical, sexual or psychological molestation or harassment that has a serious impact on the health and well-being of the applicant and/or any relevant child. Molestation is not only defined as violent behaviour, it may be other forms of behaviour as discussed above.
Who can apply for a non-molestation order?
Anybody who is an ‘associated person’ with the respondent can apply for a non-molestation order including:-
- Spouses and former spouses / civil partners / former civil partners.
- Cohabitees or former cohabitees.
- Those who live or have lived in the same household (other than by one of them being the other’s employee, tenant, lodger, or boarder).
- Certain relatives (mother, father, son, daughter, brother, sister, aunt or uncle of the respondent)
- Applicant have or have had, an intimate personal relationship with each other.
How long do non molestation orders last?
Typically, the order can last either for a specified period of time which is usually 6 or 12 months, but it is possible to apply for further orders to extend the duration of the order.
What is an Occupation order?
An occupation order can be similar to a non-molestation order, as it can be used when the applicant wishes for the respondent to be excluded from the home. The occupation order can also confer, declare, restrict or regulate the rights of occupation in the family home of those who are in or who have been in within the property that is intended to be the family home.
Who can apply for an Occupation order?
A person can apply for an Occupation Order if they:-
- They are the sole or joint owner of the home
- Have homes rights
- Have acquired a beneficial interest
- Are a tenant
What does the court consider when granting an Occupation order?
For an application to be successful, the court will apply a ‘balance of harm’ test, in which it balances whether the applicant or any relevant child is likely to suffer significant harm due to the conduct of the respondent if the order is not made. The court will then consider if the occupation order is granted will cause great or greater harm to be suffered by the respondent or any child.
When deciding to grant the order, the court will take into account all the circumstances of the case including:-
- Housing needs and resources of the parties
- Financial resources of the parties
- The likely effect of the order (or no order) on the health, safety and well-being of the parties and the children
- Conduct of the parties in relation to each other
How long will an Occupation order last?
It is unlikely the occupation order will last longer than 6 months but once again can be extended.
How to apply for a Non-molestation order or an Occupation order?
The applicant can apply for a non-molestation or an occupation order by filing an application Form with the court. This form must be sent along with a witness statement which should detail to the court what has happened and which order they are applying for.
Court fee
There is no fee payable for making either application.
What if I need protection immediately?
Contact us for an initial telephone consultation which is for 30-minutes free of charge with a domestic abuse solicitor.