What is a non-molestation order?
A non-molestation order is a type of injunction used to prohibit a person from molesting either the applicant or a relevant child. Molestation is not defined but in practice such orders can be used to protect someone from violence, harassment, and threats. The order may also include a provision to prevent a person from coming within a certain distance of you, your home address or your place of work.
What is the difference between a non-molestation order and a restraining order?
Restraining orders and non-molestation orders both achieve a similar outcome and therefore can often be confused. The main difference is that a restraining order is made in the criminal court and a non-molestation order is made in the family court.
A restraining order is most commonly used when there have been criminal proceedings against a person. In many cases of domestic abuse, the victim will not have made any report to the police or wish to pursue matters through the criminal court. This is not a barrier to obtaining a non-molestation order and therefore the family court may be better placed to offer protection in these cases.
Who can apply for a non-molestation order?
In order to apply for a non-molestation order you need to be an 'associated person'. You are associated with another person if:
- you are or have been married to each other
- you are or have been in a civil partnership
- you are or have been living together in a cohabiting relationship
- you live or have lived in the same household (except if you are the other's employee, tenant, lodger or boarder)
- you are related
- you have agreed to marry each other (even if the agreement has been terminated)
- you have or have had an intimate personal relationship of significant length
- you have entered into a civil partnership agreement
- you are both party to the same family proceedings
- in relation to a child, either you are the parent of the child or you have or have had parental responsibility for the child.
What will the court consider?
The court will consider all the circumstances of the case, including the need to secure the health, safety and well-being of you and any children.
The following principles will be considered when deciding whether to grant a non-molestation order:
- there must be evidence of molestation;
- either you or a child must need protection; and
- the judge must be satisfied that on the balance of probabilities, judicial intervention is required to control the other person's behaviour.
How long does a non-molestation order last?
A non-molestation order usually lasts between 6-12 months. However, it can be granted for longer periods of time, for example if there are ongoing court proceedings it is common for the non-molestation order to last until the conclusion of the proceedings.
What happens if the non-molestation order is breached?
Breach of a non-molestation order is a criminal offence. The maximum sentence within criminal proceedings for breach of a non-molestation order is up to five years' imprisonment and a fine.
The respondent cannot be convicted if they were unaware of the existence of the order, which is why it is important to ensure that any order made is personally served on the respondent as soon as possible.
I have been told I also need an occupation order. What is that?
For more information, please read our guide to occupation orders.
Frequently asked questions
My partner offered to give an undertaking instead. What is an undertaking and should I agree to this?
An undertaking is a solemn promise to the court to do or not do
a certain behaviour. A breach of an undertaking is enforceable as
contempt of court and is a civil offence.
If a power of arrest should be attached to an order, for example in
cases of domestic violence, then undertakings should not be
accepted.
Can I fight a non-molestation order?
You can oppose the order and try to prove that this is not necessary, however this is likely to be a costly process involving at least one court hearing. In most cases, it is appropriate to agree to give an undertaking not to molest the applicant on the basis that you do not accept the allegations made against you. This does not mean that you accept you have done any of the actions, or that a non-molestation order is necessary, but offers the applicant some protection.
How much does a non-molestation order cost?
There is no court application fee for a non-molestation order. You may incur legal fees if you instruct a solicitor or barrister.
How do I communicate with my ex about child arrangements if there is a non-molestation order in place?
The order will usually make provision for this and explain how you can make contact. Some possible options are that all correspondence is via email and must only relate to child arrangements or that correspondence must go through solicitors.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
