Injunctions: Non-Molestation Orders and Occupation Orders
If you are experiencing domestic abuse, the law can provide you with protection. Injunctions are court orders that can stop someone from harming or harassing you, and in some cases can determine who can live in the family home. At Heritage Park Family Law, we understand that seeking legal protection takes courage, and we are here to guide you through the process with sensitivity and expertise.
This page explains the two main types of protective injunction available under the Family Law Act 1996: non-molestation orders and occupation orders. We will help you understand which order may be appropriate for your situation, what the application process involves, and how we can support you.
An injunction is a court order that either prohibits someone from doing something or requires them to take specific action. In the context of domestic abuse, injunctions are used to protect victims and their children from further harm. The two primary types of injunction available in family law proceedings are non-molestation orders and occupation orders.
These orders are made under Part IV of the Family Law Act 1996, and there is no court fee to apply for either type of order. If you qualify for legal aid, this may cover the cost of legal representation.
A non-molestation order is designed to protect you (and any relevant children) from being harmed, threatened, harassed or pestered by another person. The order prohibits the respondent (the person the order is made against) from molesting you or any children named in the order.
The term ‘molestation’ is not defined in the Family Law Act 1996, but courts have interpreted it broadly. It includes behaviour that causes trouble, vexation, annoyance or inconvenience. Importantly, molestation does not require physical violence – it can include:
To apply for a non-molestation order, you must be an ‘associated person’ with the respondent. Under section 62 of the Family Law Act 1996 (as amended), associated persons include:
When deciding whether to grant a non-molestation order, the court must have regard to all the circumstances of the case, including the need to secure the health, safety and well-being of you and any relevant child. The court will typically consider:
The court does not require evidence of physical violence. Harassment, intimidation and other non-physical forms of abuse can be sufficient grounds for an order.
A non-molestation order can be tailored to your specific circumstances. Common provisions include prohibiting the respondent from:
Breaching a non-molestation order without reasonable excuse is a criminal offence under section 42A of the Family Law Act 1996. This means the police can arrest someone who breaches the order, and the Crown Prosecution Service can prosecute them. The maximum sentence is five years’ imprisonment.
This criminal sanction provides significant protection, as the respondent knows that any breach could result in arrest and prosecution without you needing to return to the civil courts.
An occupation order deals with who can live in the family home. It is a more far-reaching order than a non-molestation order because it can require someone to leave their own home, even if they are the legal owner or tenant.
Occupation orders are sometimes referred to as ‘ouster orders’ because they can oust (remove) someone from the property. However, they can also be used to regulate occupation in other ways, such as allowing both parties to remain in the home but in separate parts.
Depending on your circumstances, an occupation order may:
Like non-molestation orders, you must be an ‘associated person’ with the respondent. Additionally, the property must be, or have been, your home together, or intended to be your home together.
The type of occupation order available to you depends on your legal relationship with the respondent and your legal interest in the property. The Family Law Act 1996 sets out different provisions in sections 33, 35, 36, 37 and 38:
The court applies a two-stage test when considering an occupation order application:
Under section 33(7) of the Family Law Act 1996, the court must first consider whether you or any relevant child is likely to suffer ‘significant harm’ (as defined in section 31 of the Children Act 1989) attributable to the respondent’s conduct if the order is not made.
If the answer is yes, the court must make the order unless the respondent or a relevant child is likely to suffer significant harm that is as great as, or greater than, the harm to you or your child if the order is made.
If the balance of harm test does not mandate an order, the court may still make an occupation order using its discretion. Under section 33(6), the court will consider all the circumstances, including:
Occupation orders are significant orders because they can exclude someone from their own home. Case law has established that such orders should generally only be made in cases involving significant harm or where circumstances are exceptional.
However, ‘exceptional’ does not necessarily mean there must be evidence of violence. The courts have confirmed that occupation orders can be made in cases involving serious harassment, coercive control or other behaviour that makes it impossible for the parties to continue living together safely.
The duration of occupation orders is typically limited. Orders are often granted for periods of six months, though they can be extended. The specific duration depends on which section of the Act applies to your situation.
Unlike non-molestation orders, breaching an occupation order is not automatically a criminal offence. However, when making an occupation order, the court may attach a power of arrest if the respondent has used or threatened violence against you or a relevant child.
If a power of arrest is attached and the respondent breaches the order, the police can arrest them and bring them before the court. If no power of arrest is attached, you may need to apply for a warrant of arrest or bring contempt proceedings.
Contempt of court can result in a fine or imprisonment of up to two years.
In urgent cases, you can apply for a non-molestation order or occupation order ‘without notice’ (sometimes called ‘ex parte’). This means the court can consider your application and make an order without the respondent being present or even knowing about the application.
Without-notice orders are appropriate where there is an immediate risk of harm, or where giving notice would cause unacceptable delay or allow the respondent to take action to frustrate the application.
When deciding whether to make a without-notice order, the court will consider:
If a without-notice order is made, a further hearing (called a ‘return date’) will be listed, usually within 14 days. The respondent will be served with the order and given notice of this hearing, at which they can attend and put their case to the court.
Non-molestation orders are typically made for a specified period, often between six and twelve months. However, the court has the power to make orders for longer periods or ‘until further order’ in appropriate cases. The duration will depend on factors including the severity and history of the abuse, whether there have been previous orders or breaches, and the ongoing risk to you and any children.
Occupation orders are usually made for shorter periods, commonly six months, to allow the parties to make alternative housing arrangements. They can be extended, but the rules vary depending on which section of the Act applies to your case.
If your order is due to expire and you still need protection, you can apply to extend it. This application should be made before the existing order expires.
In some cases, rather than making an order, the court may accept an undertaking from the respondent. An undertaking is a formal promise to the court to do or refrain from doing certain things.
However, the court cannot accept an undertaking in non-molestation cases where the respondent has used or threatened violence against you or a relevant child and a non-molestation order is necessary to protect you. This is because an undertaking, unlike a non-molestation order, is not backed by the criminal law – breaching an undertaking is contempt of court rather than a criminal offence.
Applications for non-molestation orders and occupation orders are made using Form FL401 and a supporting witness statement (Form FL401T). There is no court fee for these applications.
The process typically involves:
You can also apply online through CourtNav, a tool provided by Citizens Advice that guides you through the application process and generates the necessary forms.
If you are married or in a civil partnership and your spouse or civil partner owns the family home (or is the sole tenant), you have ‘home rights’ under section 30 of the Family Law Act 1996. These rights mean you have a right to remain in the property and cannot be evicted without a court order.
Home rights can be protected by registering a notice at the Land Registry (for registered land) or as a Class F land charge (for unregistered land). This protects your right to occupy even if your spouse or civil partner tries to sell or mortgage the property.
If you are not married or in a civil partnership, you do not have automatic home rights, even if you have lived in the property for many years. However, you may have other rights depending on your financial contributions to the property, which a family law specialist can advise you about.
The court will require some evidence of the behaviour you are complaining about. However, your own witness statement describing what has happened can be sufficient evidence, particularly for a without-notice application. Supporting evidence such as text messages, photographs of injuries, police reports or medical records can strengthen your case, but their absence does not necessarily prevent an order being made.
Yes. You do not need to be married or in a civil partnership to apply for a non-molestation order or an occupation order. You can apply if you are cohabitants, former cohabitants, relatives, or if you have had an intimate personal relationship of significant duration with the respondent.
In urgent cases, you can apply for a without-notice order, which can sometimes be obtained on the same day or within a few days of making the application. The court will list a return hearing, usually within 14 days, at which the respondent can attend.
If a non-molestation order is breached, you should report it to the police. Breach of a non-molestation order is a criminal offence, and the respondent can be arrested and prosecuted. For occupation orders with a power of arrest attached, the police can also arrest the respondent. You should keep a record of any breaches and report them promptly.
Absolutely. Non-molestation orders and occupation orders are available to anyone who meets the eligibility criteria, regardless of gender. Domestic abuse affects people of all genders, and the law provides protection equally to all victims.
If you apply for an injunction, you will generally need to attend at least one court hearing. If the application is not contested, or if the respondent agrees to an order or gives undertakings, the process may be relatively straightforward. If the application is contested, there may be a hearing at which you will need to give evidence. Having legal representation can help you navigate this process.
Legal aid is available for applications for non-molestation orders and occupation orders if you meet the financial eligibility criteria and can provide evidence of domestic abuse. Evidence can include police reports, letters from support services, medical evidence or court orders. Heritage Park Family Law do not deal with Legal aid but we may be able to point you to legal aid solicitors who can help.
There is no court fee for applying for a non-molestation order or occupation order. If you qualify for legal aid, your legal costs may be covered.
At Heritage Park Family Law, we understand that seeking protection from domestic abuse is one of the most difficult steps you can take. Our specialist family lawyers have many years of experience so you can be assured you are in safe hands.
We offer fixed fees for many injunction matters where possible, so you know your costs in advance. We also offer an initial fixed fee discussion at a reduced rate so you can talk through your situation and understand your options before deciding how to proceed.
If you need protection from domestic abuse, or if you are facing an application for an injunction, please get in touch. We offer an initial discussion at a reduced rate to help you understand your options and how we can help.
Contact Heritage Park Family Law today by calling 01525 406030 or fill in our contact form to arrange your initial consultation.
