For victims of domestic abuse, a non molestation order can be used to prevent your abuser from harassing you further.
In this article, we explain how to apply to court to get a non molestation order and what to do if you need to make an emergency application.
What is a non molestation order?
A non molestation order is a type of injunction used to prevent a partner, ex partner or relative from harming you and your children or threatening you with harm. This includes the use or threat of physical violence, or intimidating, harassing or pestering you.
Under the terms of an order, the court can forbid particular abusive acts by the respondent, as well as forbidding them from instructing or encouraging others to harass or intimidate you. This type of order can also be used to prohibit your abuser from contacting you, coming to your home or place of work, or even coming within a certain distance of you.
A non molestation order is a very powerful tool. If the terms of the order are breached by your abuser, this will be a criminal offence for which they can be arrested. A person who, without reasonable excuse, behaves in a way in which they are forbidden from doing under the order will be liable on conviction to a term of imprisonment of up to 5 years, a fine or both. A breach of an order can also lead to contempt of court or committal proceedings.
In many cases, the mere existence of a non molestation order can have a dramatic effect on an abuser’s behaviour. The knowledge that they could be arrested if they breach an order, with serious consequences if found guilty, can often be enough to prevent further abuse.
When is a non molestation order used?
A non molestation order is typically used by victims of domestic abuse to prevent their partner, or former partner, from harming them or their children. This can be one the most effective ways of protecting yourself and your children against actual or threats of violence, and harassment or intimidation, and can be applied against a number of different people with whom you have a recognised relationship. These include:
- Your husband, wife or civil partner
- Your former husband, wife or civil partner
- Your fiancé(e) or proposed civil partner
- Your former fiancé(e) or former proposed civil partner, provided your engagement or agreement to enter into a civil partnership ended less than 3 years ago
- Your live-in partner or former live-in partner
- Your boyfriend, girlfriend, partner or a person you are in or have been in a personal intimate relationship which is or was of significant duration
- The parent of your child(ren), or someone with whom you share parental responsibility
Essentially, to make an application for a non molestation order, you and your abuser must have an “association” under the meaning of the Family Law Act 1996. This includes same sex and mixed sex relationships.
This type of order can also be used to protect you and your children against harm from relatives, including parents, grandparents, children, grandchildren, siblings, aunts and uncles, nieces and nephews and even first cousins.
Who can apply for a non molestation order?
You can usually apply for a non molestation order if you are the victim of domestic abuse and the person that you want to be protected from is either someone you are having or have had a relationship with, someone you are living or have lived with, or a close family member.
Domestic abuse encompasses a wide range of conduct — including any behaviour that is threatening, violent or abusive, including psychological or sexual abuse, or any other behaviour that is intended to harm, frighten or punish a person — and occurs within an existing or previous intimate relationship, or between members of the same family.
What is the process of getting a non molestation order?
As the victim of domestic abuse you may have legal rights under both criminal and civil law. For example, it is a criminal offence for another individual to physically assault you, for which that person could be arrested if you report the matter to the police. This could result in charges being brought against your abuser through the criminal courts.
You can also apply through the family courts for protection from violence, as well as more subtle forms of abusive behaviour. In this way, a non molestation order can protect you against conduct that in itself may not amount to a criminal offence, or where there is insufficient evidence for the police to make an immediate arrest. By having a non molestation order in place, the police can arrest your abuser for the offence of breaching that order.
How do you apply for a non molestation order?
To apply for a non molestation order you will need to complete form FL401, asking the court to make an order against a named person who has used or threatened to use violence against you or your children, or harassed and intimidated you. This is a fairly lengthy form, requiring a witness statement in support and setting out your reasons for applying for the order.
There are guidance notes included as part of the application form. You can also apply by email or post at your local family court.
If you are applying by email or post you will need to follow these four steps:
- Download and complete the application form and make two copies
- Compile a witness statement explaining to the court what has happened and asking for a non molestation order, verified by a signed and dated statement of truth
- Download and fill in form C8 if you want to keep your contact details private, leaving these details blank on form FL401
- Email or send all the documents to your local family court.
There is no fee payable to make this application. You may also be eligible for public funding to secure the services of a solicitor specialising in domestic abuse cases. Your solicitor will be able to complete the application and draft the witness statement on your behalf. They can also provide important advice on applying for an occupation order at the same time, where appropriate, asking for your abuser to be excluded from the property in which you both live.
Can I apply for an emergency non molestation order?
It may be possible to make an emergency application for a non molestation order without providing your abuser with any notice of the proceedings. This is known as an “ex parte” or “without notice” order. This is typically where there has been a recent and serious incident of abusive behaviour.
If you want the court to hear your application without notice, the reasons relied on must be set out in your witness statement.
In determining whether to exercise its powers to grant an order in the respondent’s absence, the court will take into account:
- any risk of significant harm to the applicant and/or any child(ren) if an immediate order is not made;
- whether it is likely that the applicant will be deterred or prevented from pursuing their application if an immediate order is not made; and
- whether there is reason to believe the respondent is aware of the application but is deliberately evading service and that the applicant or any child(ren) will be seriously prejudiced by the delay involved in effecting substituted service.
It is important to bear in mind that an “ex parte” order will not come into effect until the respondent has been personally served with the order. This is because someone cannot be charged with breaching an order that they know nothing about. If an order is granted without notice, the court will also set a return date for a further hearing, providing the respondent with an opportunity to make any representations relating to the order.
If you are acting without legal representation, you must not serve the order yourself on the person you are seeking the order against. You should ensure that the question of service is agreed with the court at your initial hearing. If you have instructed a solicitor, they can arrange for the documents to be served by using a professional process server. You can also complete form D89 to ask the court to order that a court bailiff serve the documents.
What happens at the hearing for a non molestation order?
At the hearing of a non molestation order, the court will consider the evidence you have provided in support, together with the evidence of the respondent where the application has been made on notice or on the return date. The appointment will usually be held in private, where no other members of the public or press will be in the room.
In deciding whether to grant a non molestation order under the 1996 Act and, if so, in what terms, the court will have regard to all the circumstances. This will include the need to secure the health, safety and well-being of you and any children involved.
It is rare for an abuser to completely deny all allegations against them, although they may often provide the court with a diluted version of events. It is therefore important that you are able to provide a detailed account, with dates and times, of all matters relied upon. Any physical evidence of abuse, including text messages or emails, in addition to any photos of injuries or damage to property will strengthen your case.
Having heard all the evidence from both parties, the court may decide that it needs further information before granting an order. It can put an interim order in place if the hearing is to be adjourned. If the court already has sufficient evidence to make a non molestation order, it will usually grant the order for a specific period of time, typically between 6 to 12 months. You can, however, apply to extend a non molestation order for longer if there is a continuing risk.
What is the difference between a non molestation order and a restraining order UK?
A non molestation order is different to a restraining order. A restraining order is typically used at the conclusion of criminal proceedings where protection is required for the victim of the crime against harassment or violence by the perpetrator. An application can also be made for a restraining order through the civil courts for protection against harassment.
Restraining orders are granted under the Protection from Harassment Act 1997, while non molestation orders are granted under the Family Law Act 1996.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.