Family Law | Domestic Violence | In An Emergency – The Remedies Available
Updated: Aug 7
There can be times where, unfortunately, a party may be subjected to violence or the threat of violence by the other. It may be necessary to seek the assistance of the Court for protection by way of applying for an injunction.
Each situation will need to be looked at separately to decide whether it is appropriate to apply for an injunction. In serious circumstances, the decision to make an application can be clear. However, it can be more difficult to decide whether to make an application when the allegations made are, for example, verbal abuse or harassment, instead of, say, violence.
Anyone considering making an application for an injunction should consider the cost consequences involved.
There are two types of injunctions available.
Non-Molestation Order – this allows a person to be “protected” from the other person. It prevents one party from molesting, threatening or interfering with the other party or instructing, encouraging or in any way suggesting that another person should do so
Occupation Order – this removes one party from a particular residence, preventing a party from returning to that particular residence or visiting that particular residence
It should be noted, however, that whether and which Order you can apply for will depend upon the parties circumstances.
What if the situation is urgent?
If the situation is very urgent, you can make an application “ex-parte”. This means that an application can be made to the Court without giving the other party notice of the application, due to the urgency.
If the Court grants your application ex-parte, then you and the other party will need to attend Court in the near future as the ex-parte Order will only cover for a short period of time (bear in mind the Court has only heard one side of the story).
Further, it is worthy to note that the ex-parte Order is only effective upon the person against whom it is made about it has been served upon that person. That person cannot be bound upon that Order until they are made aware of the same.
What if the situation is not urgent?
In most circumstances, an application is lodged at Court and the other party is given notice of the application and the hearing date.
The application will be heard by the Court and numerous directions could be made by the Judge, such as evidence by way of statements or Undertakings.
An Undertaking (a solemn promise to the Court) may be offered by the person whom the application is made against. It should be noted that this does not mean that the person admits to anything alleged against them, but it is a promise not to do something, which may be to stay away from the Applicant’s property, in the future.
If an Undertaking is broken, the effect is that you are breaking the injunction.
What is a Power of Arrest and the effects?
A Power of Arrest can sometimes be attached to an injunction. Please note that a Power of Arrest cannot be attached to an Undertaking.
If a Power of Arrest is attached to the injunction, then this means that if the injunction is broken, then the situation may be reported to the police who then must arrest that person.
If a Power of Arrest is not attached to the injunction and the injunction is broken, then the police generally are not involved. An application would instead need to be made to the Court to show cause as to why the person breaking the injunction is in contempt of Court.
The information provided in this article is not intended to constitute legal advice and you should take full and comprehensive legal advice on your individual circumstances by a fully qualified Solicitor before you embark on any course of action.
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