Injunctions in Matrimonial and Family Matters in the UK
Injunctions are a remedy available to the Court as a “last resort” measure to protect people, property and assets during the breakdown of a relationship. Most often, injunctions are associated with situations where domestic violence, threatening or harassing behaviour has occurred. An injunction is simply a party’s request that another party be specifically prohibited from engaging in the detrimental behaviour, under penalty of law.
There are two ways to apply for an injunction: with or without notice to the other party. A ‘without notice’ application for an injunction occurs when a party asks the Court to make an order without the other party present at court. These types of applications can only be made if there is a real and immediate danger of serious injury or irreparable harm.
Under the Family Law Act 1996, there are two types of injunctive orders that can be issued to protect people:
- Non-molestation orders, and
- Occupation orders
A non-molestation order prohibits a party from using or threatening violence against another party, or intimidating, harassing or pestering another party.
An occupation order requires that one party vacate a party – usually a family home. There are several issues the Court must take into account when issuing an occupation order due to the significant impact such an order can have. The Court must consider the status of each party’s right to occupy the property, along with other issues involved, including:
- Each party’s housing needs and resources;
- The financial circumstances of both parties;
- The alleged conduct; and
- The resulting health and safety of each party and any children if no order were entered by the Court.
The Court has the authority to attach a power of arrest to any injunction. A breach of the injunction is considered very serious and can result in a criminal offence and up to five years imprisonment under the Domestic Violence Crime and Victims Act 2004.
Apart from issues of domestic violence, there are times injunctions are necessary in order to protect property and other assets from unfair disposal. For example, a party may attempt to dispose of assets in order to frustrate the other party’s financial claims. Under s37 of the Matrimonial Causes Act 1973, the Court can prevent a party form transferring assets out to the country or to a third party, as well as preventing a party from carrying out certain transactions, such as the sale of a property. Courts have the power to set aside certain transactions that have already occurred.
Because of the heavy burden and serious nature implicit in the injunction process, it is imperative that those parties considering obtaining an injunction, as well as those defending against an injunction, obtain proper legal advice and assistance in moving forward with injunctive relief. At Prince Evans, Elizabeth Kornat has vast experience in the area of injunctions, and she is available for consultation.