Domestic Violence - Injunctions

Help under the Civil Law

You can apply for an injunction in the Magistrates Court or the County Court under Part 4 of the Family Law Act 1996. These are Court Orders that order someone to do something, or not to do something.

There are two main types of injunctions (also called protection orders). These are:

a non-molestation order
an occupation order

Who can Apply?

In order for you (‘the applicant’) to apply for an order against someone else (‘the respondent’) under this Act you must be ‘associated persons’. This means that you must be related to each other in one of the following ways:

you are or have been married to each other
you are cohabitants or former cohabitants (defined as opposite sex)
you live or have lived in the same household (but not just as employee, tenant, lodger or boarder)
you are relatives
you have formally agreed to marry each other
you are both the parents of the same child or have had parental responsibility for that child
you are both involved in the same family proceedings (e.g. divorce)

If you are a woman without children who has never lived with your abuser you are therefore excluded from applying for orders under Part 4 of the Family Law Act (see below for other options).

There are also additional conditions on who can apply for occupation orders.

Will I have to Pay?

If you are on income support, or have a very low income, or have small savings, you can usually get help from Legal Aid to pay for a Solicitor’s advice and for legal proceedings. In other cases, you may have to pay a contribution or the full costs of legal action.

What is a Non-Molestation Order?

This is a Court Order to prevent your partner from using or threatening violence against you or your child, or intimidating, harassing or pestering you. It can also have very specific instructions in it to suit your particular case. For example, it could order your ex-partner to stop telephoning you or pestering you at work. You can apply for a non-molestation order against someone if you are associated with them (see above). A non-molestation order can be granted for six months or for an indefinite period.

What is an Occupation Order?

This is an order which regulates who can live in the family home. If you do not feel safe to continue living with your partner, or you have left home because of violence but wish to return and exclude your abuser, you may want to apply for an occupation order. You can also apply to restrict the respondent (person against whom you are taking out the order) from the home and/or surrounding area.

Who can apply for an Occupation Order?

You must be an associated person to apply for an Occupation Order but not all associated persons are eligible unless they meet further criteria. If you are a sole or joint tenant, or owner or co-owner of your home, or you are married to someone who is, then you can apply for an occupation order which can be granted for 6 months, can be renewed if needed, or even granted for an indefinite period.

If you do not have an existing legal right to occupy the home as joint tenant or co-owner, then you can only apply for an occupation order if you are or have been married to the other person, or are a cohabitant or ex-cohabitant (defined as having lived as man and wife). This means, for example, that if you are a lesbian you cannot get an occupation order for your former home unless you are already a tenant or owner. In these circumstances, occupations orders can be granted for a period of six months, but can be extended for longer depending on the status of the applicant. Cohabitants who are not legally entitled to the home can only have occupation orders extended for up to one year.

How will the Court Decide whether to make an Occupation Order?

The Court has discretion when deciding whether to make an order and has to look at all the circumstances for you, your partner and any children. Whatever your situation, the Court must look at your housing needs and housing resources; your financial resources; the likely effect of any order (or lack of order) on the health, safety or well-being of any of you; your conduct in relation to each other.

If you are not legally entitled to occupy the property, then the court will also look at other factors such as, for example, how long it is since you lived together, the length of time since the relationship ended, and the existence of any pending proceedings between you.

The court also has to apply one further test to see whether or not to grant the order - this is called the ‘balance of harm test’. When looking at your needs, the needs of your children, and the needs of your abuser, the court has to decide who is likely to suffer the greatest harm if the order is not made. As the court can only consider the harm caused to you or your children by the conduct of the respondent, then it is important that you or your Solicitor provide the Court with as much evidence as possible of all aspects of the harm caused by his abusive behaviour, including the fact that you have had to, or may have to, leave your home, and the impact that will have on your physical or mental well-being, as well as your child’s.

Going to Court

What Evidence will I need?

You will need to make a sworn statement to the court (called an Affidavit in the County Court) about the abuse you have experienced. You will need to be as precise as possible about all the ways you have been bullied or hurt as well as describing the effects on both you and your children. It will help if you have kept a record, or can show independent evidence of any incidents in the past from police, doctors, health visitors, social workers, or other possible witnesses.

How long will it take to get a Court Order?

If you are in immediate danger, you can apply to the Court the same day for an ‘ex parte’ order to be made without your partner being there. In deciding whether to hear your application for an order without him being present, the court will have to look at whether you are at risk of significant harm, whether you will be prevented or deterred from applying if you have to wait, and whether your abuser is already evading service of notice to appear before the court. If the court grants an ‘ex parte’ order, you will still have to go back to Court for a full hearing, once he has been served with notice of the order. This will depend on the availability of court time.

What if we’re already going to Court over Child Contact or Divorce?

If there are other family proceedings already in progress, or your partner makes an application at the same time (e.g. for child contact), the court may wish to hear the whole case together. But you can still be granted an emergency order while waiting for the whole case can be heard.

Will the Court be Likely to Grant an Order?

This will depend on the evidence, but sometimes the court will suggest that instead of an injunction, the man should make an undertaking (promise) to the Court not to (for example) pester or threaten you. This takes much less court time than arguing a case, so the courts are often keen for you to accept this. But an undertaking cannot have a power of arrest attached (see below) and therefore is harder to enforce. The court should not accept an undertaking where violence has already been used or threatened, and you do not have to agree to accept one if you do not want to.

What if the Court Orders are Broken?

At a full hearing, where violence has been used or threatened, the court must attach a ‘power of arrest’ to an order. The injunction is then held on record at the police station, and the police can then arrest immediately if the order is broken and take the man back before the court. The Court can also attach a power of arrest in an emergency even if the man has not been given notice to appear in Court, if you are likely to be at risk of significant harm otherwise.

If there is no power of arrest, and the order is then broken, you will have to apply to the court for a warrant for his arrest to be issued.

What Happens when we go back to Court?

The Court has a number of options, depending on the seriousness of the situation. They can fine him, impose a suspended sentence, or commit him to prison (this rarely happens), as well as making the injunction stronger by, for example, adding a power of arrest or extending it.

What if he keeps Pestering Me?

You will have to keep going back to court. You can also ask the police to help record evidence of this and take action under the Protection from Harassment Act (see Women’s Aid - Criminal Law section.) If you are a woman without children who has never lived with her abuser, and cannot use the Family Law Act, this is your main option.

Where to go for Help

In an emergency, dial 999 and ask the police for help. They can refer you to a refuge or emergency place of safety if you need this.

If you think you are experiencing domestic violence, would like to talk about it or would like help with finding somewhere safe to stay contact the Women’s Aid National Helpline on 0345 023 468.

You can also get help from your local Women’s Aid group via the telephone directory, your local police station, emergency Social Services, Citizens Advice Bureau or the Housing Department.

To see if you may qualify for Legal Aid Click here

Print this page

Information on this page is current and last updated: 12/03/2008

Call us now on: