Family and Litigation

Injunctions

Injunctions in General

Violence within the home is not uncommon. A relationship may break down due to such behaviour or result from the breakdown. Physical violence is a criminal offence. However, prosecution under the criminal law may be inadequate in some cases and therefore there are civil remedies which may be more appropriate. A non-molestation Order can be obtained to prohibit violence and anti social behaviour. Where the persons concerned live in the same home an Order can be made requiring one person to move out. Orders may also be made to protect children within the home.

Primarily, there are two types of Orders that can be made under the Family Law Act 1996:-

Non-Molestation Orders
This type of Order can be made to prevent a person from using or threatening to use physical violence or to prevent a person from harassing, pestering or intimidating someone.
An Order can be made on a free standing basis or within existing proceedings.
There needs to be proof of molestation:-
  1. There must be evidence of molestation (harassment, intimidation, pestering, violence or threats of violence)
  2. The Applicant (or child) must need protection; and
  3. The judge must be satisfied (on the balance of probabilities) that judicial intervention is required to control the behaviour which is the subject of the complaint.
The Applicant or relevant child must be at risk of 'significant harm' or at risk of significant harm if no Order is made.
There are two ways of obtaining a non-molestation Order. The first is by way of an urgent application to the Court on what is known as an "ex parte basis". Secondly, by application 'on notice'. the ex parte application is only done in the most urgent and serious of cases. This means that the Order is made before the other party has any knowledge of the application. Once an ex parte order is made, it has to be served upon the other party.
An Order is only effective and enforceable once served upon the party named in it. You will need to return to the Court within a few days of the ex parte order being made in order that the Court can review the situation. The further hearing will be on a date and time specified by the Court. Both parties should be in attendance at the second hearing. If the Respondent does not attend, then provided service of documents can be proven, the Court is likely to make a final Order in his or her absence. If the Respondent does attend at the second hearing hopefully a final Order can be made. The further Order has to be served on the Respondent regardless.
A non-molestation order will usually remain in force for 6 months. The Order will run to a date and time fixed by the Court. A non-molestation Order can be extended but a further application does have to be made to the Court. Further evidence would have to be filed at that time.
When an application is made on notice, both sides are informed of the hearing date and the Respondent is served with the application in advance of the hearing taking place. The Respondent therefore has the opportunity to attend the Court hearing and challenge the evidence before the Court. However, if no challenge is made, a final Order can be made. If evidence is challenged then the Court will list the application for a final hearing. Both parties may be required by the Court to file further statement evidence.
Occupation Orders:-
These Orders are used where the future or immediate occupation of a property is in dispute. One person could effectively be required to leave the home because of his/her violent behaviour towards the other or the effect that his/her presence is having on the children.
In deciding whether to exercise its powers in relation to an application for an occupation order, the Court shall have regard to all the circumstances including:-
  1. The housing needs and housing resources of each of the parties and of any relevant child;
  2. The financial resources of each of the parties;
  3. The likely effect of any Order (or of any decision by the Court not to exercise its powers) on the health, safety or well-being of the parties and of any relevant child;
  4. The conduct of the parties in relation to each other and
    1. Whether the Applicant or any relevant child is likely to suffer significant harm attributable to conduct of the Respondent; and
    2. Whether the harm likely to be suffered by the Respondent or child if the provision is included is as great or greater than the harm attributable to the conduct of the Respondent which is likely to be suffered by the Applicant or child if the provision is not included.
An occupation Order usually runs for a fixed period of time. Other applications can be made concerning transfers of tenancies and other issues regarding property in that period under different legislation if appropriate. Again an occupation Order can be extended but a further fresh application with supporting evidence needs to be made. Again an Order is only enforceable once it has been served upon the party named in it.

Injunctions are entirely at the Courts complete discretion.

Applying for an Injunction

Injunctions in family cases are applied for under Part IV of the Family Law Act 1996. This is done by formal application made to the Court expressing what is sought. A sworn Affidavit Statement in support also has to be filed. The overall costs for this type of application are likely to be in the region of £1,000 to £2,500 plus VAT in respect of which you may or may not receive Public Funding.

Undertakings

An undertaking is a legally binding promise given to the Court to do or not to do something. Undertakings can in certain circumstances take the place of a Court Order. Where an undertaking is accepted by the Court and subsequently broken by the person who gave it, there are serious consequences which can include imprisonment or a fine. An undertaking could be, for example, that the person states that he/she will not use violence against the other or pester or harass the other person.

An undertaking can also relate to the occupation or otherwise of a property. An undertaking will only be accepted by the Court if the party, originally applying for an Order, will be adequately protected. If not, then an Order will be made. An undertaking will be for a fixed period of time, i.e. 6 months. Undertakings when offered by a Respondent are done so on the basis that no admissions of the allegations are made and no finding of fact against a Respondent in relation to allegations made by the Court. An undertaking is a promise as to future conduct.

Powers of Arrest

An application for a non-molestation injunction or an occupation order can also include a request for a Power of Arrest to be attached to the Order/s. The Court will grant a Power of Arrest if it is satisfied that the Respondent has used or threatened violence against the person applying and that there is a risk of significant harm to the person applying attributable to the conduct of the Respondent if the Power of Arrest is not attached immediately.

A copy of an injunction with a Power of Arrest has to be sent to the police. A Police Officer can then arrest a Respondent if a breach an Order occurs. The Respondent is then usually kept in Police custody and will then be brought before the Court at the earliest opportunity. It is then for the Court to decide what punishment the Respondent should face. A Power of Arrest will not be attached to a non-molestation order relating to intimidation, pestering or harassment.

A Power of Arrest cannot be attached to an undertaking. It can only be attached to a Court Order.

Enforcement

If a Court Order without a Power of Arrest attached is breached, then the applicant has to make an application to the Court for the Respondent's committal to prison providing precise details of the breach alleged. The committal application is served on the Respondent and then heard by the Court. The Court has the power to fine or imprison the Respondent if the Court finds that a reach has occurred. The Court usually prefers less draconian methods. The Court could start with attaching a Power of Arrest to an Order before considering other option. Otherwise the Court may feel that warning the Respondent has to be future conduct is sufficient together with a further Order.

A breach of an undertaking is dealt with in the same way. However, the Court do have the power at a committal hearing to make an injunction order with or without a Power of Arrest in the first instance.

Cost Orders

The person applying for the Orders may ask the Court to make a costs order against the other party. This is not always granted even if the application for the Order is successful.

Public Funding (previously known as Legal Aid)

Public Funding may be available on an emergency basis, or with the Legal Services granting a certificate subsequent to a full application being made. The person applying for a certificate will need to qualify both financially and with the merits of the case justifying representation.

Financial Orders

Legal advice is vital whether financial issues can be agreed or not. The Decree Absolute does not terminate spouse's obligations to each other. Therefore even if the Decree is finalised, applications can be made for financial help at any time thereafter. These are sometimes made many years later. The assets are then usually valued at the date of separation not the divorce. Negotiations are likely to be going on throughout the process. If agreement is reached and the Court approves then the agreement will be turned into a Consent Order. If it cannot be agreed then the Court procedure can be started by either party, but this does not stop an agreement being reached.

Either party files notice claiming Ancillary Relief using Form A - that party is known as the Applicant.

Upon receipt the Court fixes a first appointment and serves notice to both parties.

Interim Orders may be made if either party needs financial assistance prior to the final hearing.

Form E is filed at least 35 days before first appointment. Statements of property and income are exchanged to which are attached:

14 days before first appointment both parties must file and serve:

Both parties must produce a first Costs Estimate immediately before the first appointment.

First Appointment

Financial Dispute Resolution (FDR) aims to help parties reach agreement - if so the Judge may make appropriate Consent Order. If not a Final Hearing date is set.

Before Final Hearing both parties file and serve statement of open proposals explaining what they think the best solution is as well as comply with any direction from the FDR.

At the Final Hearing the issues will be considered and a Court Order made. This will include one or a combination of the following:

Although it is possible to conduct your own divorce when there are complications in respect of finances or orders related to children, it is recommended that legal advice be taken.

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