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Non-Molestation and Occupancy Orders and Ancillary Relief - Essay Example

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Solicitor’s Firm Name and Address Terri Address Date Dear Terri RE: Non-Molestation and Occupancy Orders and Ancillary Relief Further to our meeting of last week we have had an opportunity to review the relevant law and facts. You specifically requested advice on the steps that can be taken to prevent your husband’s violence against you and what you might expect in terms of division of the matrimonial property upon the dissolution of your marriage…
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Download file to see previous pages Further details are set out below. Non-Molestation Order In order to put a stop to your husband’s violence, you are at liberty to apply to the courts for a non-molestation order under Section 42 of the Family Law Act 1996 (as amended).1 There is one pre-condition necessary for applying for a non-molestation order. The order can only be in respect of associated persons.2 Associated persons are described by Section 62 of the Family Law Act 1996 and include any number of domestic relationships including spouses.3 Therefore you and John are associated persons. Moreover, should you apply for a divorce the court can make a non-molestation order in the course of family proceedings. Either way, the court can make the order irrespective of whether or not you apply for a divorce or whether or not there are any other family proceedings.4 In deciding whether or not a non-molestation order is appropriate the court will examine all of the facts and circumstances of the case including the need to ensure your well-being, health and safety. In this regard, the resulting order will have the effect or ordering John to stop the violence and may also order him to avoid doing anything else that amounts to abusive behaviour or harassment.5 Essentially, a non-molestation order may refer to specific acts of violence or harassment or abusive conduct or it may be expressed in general terms.6 A non-molestation order may be for a fixed period or made until further notice.7 We would suggest that since you are sure you want to file for a divorce that you file for a divorce and seek a non-molestation order as interim relief with a view to having the order open until further notice. According to Section 42(8) of the Family Law Act 1996, once family proceedings are withdrawn or dismissed, the non-molestation order ceases to be effective.8 The consequences of Section 42(8) should not be of concern to you, since the divorce proceedings will only be withdrawn or dismissed if you either reconcile with John (in which case a non-molestation order would not be necessary) or if it is established that the grounds for a divorce are not substantiated (in which case there was no need for a molestation order in the first place). Regardless, a non-molestation order will provide you with significant safety since a breach of the order is a criminal offence for which John faces a term of imprisonment for up to five years.9 Occupation Order Obviously, you may want to ask John to vacate the matrimonial home, but the problem with that is that since he is a co-owner under a tenancy in common, he has the right to come back and occupy the home at any time.10 This is because pursuant to Section 30 of Part IV of the Family Law Act 1996, both spouses have the right against eviction or exclusion from the family home unless an occupation order is obtained under sections 33-38 of the 1996 Act.11 By virtue of Section 33, as an associated person with an interest in the family home as a result of the tenancy in common, you have a right to apply for an occupation order as a means of putting a stop to John’s violence against you.12 An occupation order will make an order for you to either occupy the home or part of it or order John to vacate the home or part of it.13 In making the order the court will take account of the “ ...Download file to see next pages Read More
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