What is a 'Non-Molestation Order?'

Non-Molestation orders were created by Part IV of the Family Law Act 1996, along with occupation orders. A non-molestation order is a remedy that stops a man or woman from pestering, harassing, assaulting, molesting or threatening their partner or former partner, or their children. It can be tailored to a person’s specific requirements, so that it is as relevant as possible to their situation. This could mean:

• preventing someone from telephoning you
• stopping them from hassling you at work
• banishing them from a particular area

You cannot just apply for a non-molestation order against anyone. You must have a significant connection with the person. This means either that you have been married to the person, have lived with them (as partners of the opposite sex), have lived in the same household as them (which applies to lesbian or gay partners), or if they are related to you. In addition, you could have agreed to marry them, regardless of whether you are still engaged or not, or you are parents or share parental responsibility of a child. Lastly, if you are already in family litigation with the other party, you can also obtain a non-molestation order.

Who is Excluded?

If you do not have children and have never lived with the person against whom you want to obtain the non-molestation order, you cannot apply for this order under the Family Law Act 1996. Instead, the appropriate course of action would be to apply for an injunction under the Protection from harassment Act 1997.

Breaching a Non-Molestation Order

If a person breaches an order against them, they are liable to be charged with a criminal offence. This is under the Domestic Violence, Crimes and Victims Act 2004 which provides that: it is an offence for a person to fail to comply with an order unless they have ‘reasonable excuse.’ This means that there are some instances in which they may have a valid defence for breaching the order. If they do not, they can be sent to prison for up to five years. They may also be held in contempt of court, for which the punishment can also be a fine or imprisonment.

Breaches of non-molestation orders will be dealt with in different ways depending on the circumstances. Factors that will be considered are:

• whether the breach was a ‘one off’ or whether it was a series of breaches
• whether the breach was intentional or accidental
• what happened as a result of the breach. For example, if the person breaching the order did so in order to cause physical injury, and did so, this would be regarded as more serious than a mistaken breach of the order.

What Will Happen if There’s a Breach?

It is also worth noting that the intended consequences of the breach do not need to have occurred in order for the breach to be taken more seriously. This is because the court looks very closely at what the person breaching the order was going to do. If it is clear that they intended very serious harm, physically or psychologically, then this could aggravate the offence.

Not all breaches of non-molestation orders are prosecuted. Where physical harm has been caused as a result of the breach, a sentence of imprisonment is almost inevitable. The court will also consider how vulnerable the victim is, such as their age, any disabilities, or pregnancy. Attempts to prevent the victim will also be taken very seriously, as will breaches of any order that was put in place in order to protect a child.