Non-Molestation Orders and Occupation Orders – What You Need to Know

If you are a victim of domestic abuse, you may find yourself in a position where you require a protective injunction from the Court. Even in situations where the police have not been able to take action due to limited evidence, it is possible to gain some protections in the form of a civil injunction.

Understanding the tests that the Court applies in these circumstances is helpful in determining whether you should consider taking action. It will also help those defending applications understand their chance of success in doing so.

The Family Law Act provides two main forms of protective orders: Non-Molestation Orders and Occupation Orders.

What Is a Non-Molestation Order?

A Non-Molestation Order is designed to protect individuals from harassment, threats, or violence by a current or former partner. In these cases, the burden of proof lies with the applicant.

The standard of proof is on the balance of probabilities (and not beyond reasonable doubt as in criminal cases). This means the court must be satisfied that it is more likely than not that the abuse has occurred or will occur if the order is not made.

The court considers the nature of the behaviour, the history between the parties, and the potential for further harm to occur. This can be detailed in witness statements, police reports or medical records.

What Is an Occupation Order?

An Occupation Order determines who can live in the family home or who must leave the property. These orders involve more complex considerations, particularly where both parties have a legal right to occupy the property.

The Court will assess what is termed “the balance of harm test”: whether the harm likely to be suffered by the applicant or any children if the order is not granted outweighs the harm to the respondent if it is and they are forced to leave the property.

This test is much greater than the test in determining whether a non-molestation order should be made, as the consequences of an occupation order will potentially leave a legal owner or occupier homeless.

Applications for Non-Molestation Orders and Occupation Orders are often made in urgent and emotional circumstances. At Kew Law LLP, we provide clear, practical advice and strong representation for both applicants and defendants. If you need support or want to learn more about your legal options, please contact our family law solicitors today.