Non-molestation Order Protection

November 20, 2019

Are you or your children victims of domestic violence? Then you might be looking for a non-molestation order.

Why?

Because the challenges of leaving an abusive partner cannot be underestimated.

Numerous studies have shown that family breakdown often acts as a catalyst for violence and that the risks of domestic violence are particularly high on or after a relationship breakdown. Studies carried out in 2010 also indicated that a high percentage of domestic violence incidents reported to the police took place after a couple had separated, and often occurred over arrangements for child contact.

If you are thinking about leaving an abusive relationship it can be helpful and safest to plan your exit from that relationship as far as possible beforehand.

One of the steps you might want to consider as part of your plan is to get protective injunctions to keep you and your children safe from violence.

The Family Law Act 1996 provides two types of protective orders:

  • Non-molestation Orders; and
  • Occupation Orders

The aim of the first one is to protect the victim from physical and other forms of abuse, and an occupation order is intended to protect the victims within their home.

Non-molestation order

How might a non-molestation order help you?

A non-molestation order can prohibit certain behavior i.e. violence, harassment, intimidation, or encouraging someone else to behave in this way. These are just some examples of behavior that can be prohibited under a non-molestation order.

A non-molestation order can also stop someone from doing certain actions i.e. from coming within a certain distance from your home, from writing to you, texting you, phoning you or otherwise communicating with you except for specific purposes, like contact arrangements, or through certain channels like through a solicitor.

It is a criminal offence to breach a non-molestation order.  A person in breach of a non-molestation order can be arrested. If convicted, the person found breaching a non-molestation order can face a sentence of up to five years in prison.

Perhaps most importantly, if you are planning to leave your abuser, you can apply for a non-molestation order without your abuser finding out about it in the first instance.

If you do this, you can go to court and get what is, in effect, a temporary non-molestation order. This will protect you from the moment your abuser is given a copy of the Order, and you can ask the court to make this Order without anyone having to tell your abuser that you are making the application; they will not know about it until it has been granted and you are protected.

In this way, you can put the protection you need in place before ending your relationship.

If you get a non-molestation order without telling your abuser, you will have to go back to court, usually within 2 weeks of getting the first non-molestation order, and the person against whom you have obtained the order will be given the opportunity to defend themselves against this order. However, you will have the protection of the non-molestation order at the very least up until this hearing.

Who can you get a non-molestation order against?

The starting point if you are thinking about applying for a non-molestation order is to look at the relationship you have with the person against whom you are seeking protection.

Non-molestation orders are only available against a person who the law considers is an ‘associated person’ to you.

A person is an ‘associated person’ to you if they are or have in the past been:

  • Married to you
  • A civil partner to you
  • Cohabitants
  • Lived in the same household, but not if that was because they were your employee, tenant, lodger or boarder
  • Relatives
  • In an agreement to get married or enter into a civil partnership with you
  • In an intimate personal relationship with you which is or was of significant duration
  • A party to other family proceedings in which you are both involved

A non-molestation order can also be made on behalf of your child if the person you want to get a non-molestation order against is a parent of your child or has parental responsibility for your child (i.e. they have a Special Guardianship Order or a ‘living with’ Child Arrangements Order).

You can obtain a non-molestation order to protect your child, even if you are not applying for an order to protect yourself.

What you have to prove to get an order

‘Molestation’ has no legal definition, and, in theory, there does not have to be actual or threatened violence to show that you are in need of protection.

Whether someone’s behavior amounts to ‘molestation’ will be looked at in relation to the specific facts of your case. So, when deciding whether to grant a non-molestation order the court will need to look at all the circumstances in your case and that will include the need to secure the health, safety, and well-being of you and of any ‘relevant’ children (i.e. children you have with the person you are seeking an order against).

In reality, it will be harder to get a non-molestation order where the abuse is not physical. This is because the penalty for breaching a non-molestation order can result in criminal sanctions (prison). This does not mean it is impossible, however.

What you will need to show is evidence of the behavior from which you seek protection, that the behavior from which you need protection is deliberate, that the person behaving in this way intends to cause you distress or harm, and that their behavior has the effect of harassing or harming you.

How long will a non-molestation order last?

A non-molestation order may last for a specified time or indefinitely. However, indefinite orders are very rare and will only be granted in exceptional circumstances.

The usual duration of non-molestation orders is 12 months. However, some courts will only make an initial order of 6 months’ duration.

Occupation orders

How might an occupation order help you?

An occupation order can be used in circumstances where you live, or have lived, in a property with the person against whom you need protection.

An occupation order can give you the right to live in that property when otherwise only your abuser would have the right to live in it.

If you have been thrown out of a property by your abuser, but you have a legal right to live in it, it enables you to return to that property.

Perhaps most importantly, it can also force your abuser to leave the property, even if they have a legal right to live in that property.

The law about occupation orders is more complicated than non-molestation orders and if this is something you need, it is best to speak to a family lawyer.

 

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