Injunctions under Family Law: what you need to know
An injunction is a court order that prevents someone from doing something that the court decides is imminent and will cause harm or disadvantage. Injunctions are only granted when the court recognises that the situation might be irretrievable if it does not intervene.
Injunctions sometimes come into play in family law, for example following a divorce or where a relationship has broken down where there is a threat of violence by one party against another, or where one of the partners is threatening to take away a child. The law applies both in civil law cases (which is the system of law concerned with private relations between members of a community) and in criminal cases (where the state imposes sanctions).
Injunctions are normally for a specified period of time (e.g. six months) but can be renewed; or they may be made until further order. There are two types of injunction that might apply in family law situations:
- a non-molestation/harassment order: which prevents someone from using or threatening violence against their former partner or their child, or intimidating, harassing or pestering them. Anyone who breaches a non-molestation or harassment order can be convicted of committing a crime;
- an occupation order: this says who can live in the family home, and can also restrict someone who is deemed to be an abuser from entering the surrounding area of their former partner. More specifically, the order might provide that a person’s “home rights” do not cease in the event of the death of the other spouse or civil partner or on termination of the marriage or civil partnership.
Both a non-molestation/harassment and an occupation order can be granted with a power of arrest attached, and this power can be exercised if the abuser breaks the order.
The law also allows a restraining order to be attached when criminal proceedings have been taken - even if the conviction has not been upheld – if the court believes that someone is likely to be at risk. Restraining orders can provide the same protection as injunctions under the civil law but may be more effective as they carry stronger penalties.
Anyone applying for an occupation order will have to show they have a legal right to occupy the home belonging to or rented by someone they have been married to or lived with.
Getting legal advice
Although anyone can apply for an injunction without having to hire a lawyer, the process can be complicated and it is advisable to seek advice from an expert lawyer who has experience. myBarrister can put you in direct touch with a barrister who can provide you with reassurance and expertise in what is bound to be a highly stressful situation.
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