Dealing with Harassment during Divorce

Divorce is a period of changing circumstances and high emotions, which of course can sometimes involve bitter disagreements between spouses.
If the situation becomes very acrimonious and one spouse is harassing the other or threatening violence it may be necessary to deal with their behaviour through the court.
Injunctions
If you are experiencing harassment or domestic violence from your spouse you can apply to court for an injunction under part IV of the 1996 Family Law Act. An injunction can be put into place immediately and can be very effective in quickly curbing threatening or violent behaviour. Although an injunction will not necessarily protect you from further harassment should your spouse choose to violate the injunction, it will mean they are breaking the law, and so can be arrested and possibly imprisoned
There are two main types of injunction under the Family Law Act:
Non-Molestation Orders
If your spouse has been abusive towards you or is threatening violence, you can apply for a non-molestation order through the civil court. A non-molestation order will forbid your spouse from being violent or intimidating towards you and possibly also your children. It will also forbid them from instructing someone else to do so on their behalf, and from damaging or disposing of your possessions. You may therefore wish to apply for this order if you have left the marital home and are worried your spouse may damage your possessions.
Even though non-molestation orders are civil court orders, breaching a non-molestation order is a criminal offence for which perpetrators may be fined or sent to prison for up to five years (although actual imprisonment is uncommon in divorce cases). Any breach should be reported to the police immediately and detailed records of incidents should be taken.
Occupation Orders
Occupation orders relate to the rights which you and your spouse have to the marital home. You may apply for an occupation order if your spouse has been abusive towards you and you want them to move out or stay away from home, although this will not be treated lightly by the courts – there have to be very good reasons before the Court will make this order.
In addition to ordering eviction, an occupation order can instruct your spouse to stay a certain distance away from the home or to stay in certain parts of the home.
On the other hand, if your spouse is preventing you from accessing the marital home, you may also apply for an occupation order.
Occupation orders typically last for six months or longer.
If you live in a council or housing association property and your partner is a tenant (sole or joint) it is possible to apply for a court ordered transfer of tenancy using the Family Law Act.
Presenting evidence
When considering whether to grant a non-molestation order or an occupation order the court will usually want to see some kind of evidence that your spouse has been abusive towards you. It will be much easier to obtain an injunction if you have documentary evidence. In addition to keeping detailed records of any incidents yourself (for instance diary notes, photographs) you should also present any police records, medical records or statements from other agencies/witnesses involved who can confirm that you have experienced abuse.
The court will also look at a number of other factors such as both parties’ financial and housing needs and resources when considering whether to grant an injunction. Speaking with a specialist family solicitor in the first instance will give you a good idea whether your application is likely to be successful or not.

Divorce is a period of changing circumstances and high emotions, which of course can sometimes involve bitter disagreements between spouses.

If the situation becomes very acrimonious and one spouse is harassing the other or threatening violence it may be necessary to deal with their behaviour through the court.
Injunctions

If you are experiencing harassment or domestic violence from your spouse you can apply to court for an injunction under part IV of the 1996 Family Law Act. An injunction can be put into place immediately and can be very effective in quickly curbing threatening or violent behaviour. Although an injunction will not necessarily protect you from further harassment should your spouse choose to violate the injunction, it will mean they are breaking the law, and so can be arrested and possibly imprisoned

There are two main types of injunction under the Family Law Act:

Non-Molestation Orders

If your spouse has been abusive towards you or is threatening violence, you can apply for a non-molestation order through the civil court. A non-molestation order will forbid your spouse from being violent or intimidating towards you and possibly also your children. It will also forbid them from instructing someone else to do so on their behalf, and from damaging or disposing of your possessions. You may therefore wish to apply for this order if you have left the marital home and are worried your spouse may damage your possessions.

Even though non-molestation orders are civil court orders, breaching a non-molestation order is a criminal offence for which perpetrators may be fined or sent to prison for up to five years (although actual imprisonment is uncommon in divorce cases). Any breach should be reported to the police immediately and detailed records of incidents should be taken.

Occupation Orders

Occupation orders relate to the rights which you and your spouse have to the marital home. You may apply for an occupation order if your spouse has been abusive towards you and you want them to move out or stay away from home, although this will not be treated lightly by the courts – there have to be very good reasons before the Court will make this order.

In addition to ordering eviction, an occupation order can instruct your spouse to stay a certain distance away from the home or to stay in certain parts of the home.

On the other hand, if your spouse is preventing you from accessing the marital home, you may also apply for an occupation order.

Occupation orders typically last for six months or longer.

If you live in a council or housing association property and your partner is a tenant (sole or joint) it is possible to apply for a court ordered transfer of tenancy using the Family Law Act.
Presenting evidence

When considering whether to grant a non-molestation order or an occupation order the court will usually want to see some kind of evidence that your spouse has been abusive towards you. It will be much easier to obtain an injunction if you have documentary evidence. In addition to keeping detailed records of any incidents yourself (for instance diary notes, photographs) you should also present any police records, medical records or statements from other agencies/witnesses involved who can confirm that you have experienced abuse.

The court will also look at a number of other factors such as both parties’ financial and housing needs and resources when considering whether to grant an injunction. Speaking with a specialist family solicitor in the first instance will give you a good idea whether your application is likely to be successful or not.

Contact Jane McDonagh
jane.mcdonagh@smab.co.uk