Home > Going Through Divorce > What is a 'Non-Molestation Order?'

What is a 'Non-Molestation Order?'

By: Lorna Elliott LLB (hons), Barrister - Updated: 13 Jun 2018 |
 
Molestation Order Court Ex Divorce

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.

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@delboy - the best way to protect yourself is to stay well away!
Jude - 14-Jun-18 @ 10:11 AM
I am a 61 year old male and married, after an argument my wife put a non molestation order on me with a warrant of arrest, the statement she made was full of Lies and I had the evidence to prove otherwise, messages, recordings, phone recordings,written statements etc, in which I still have, when I arrived at court I said I wanted to contest it but I had to have the warrant of arrest taken off because of my circumstances of where I worked, I had the warrant of arrest taken off but not before I was made to sign an undertaking from January 15 to January 16 one full year, 2 months after in March 2015 I was contacted by my wife who asked me to go back, I did and so we both breached the conditions of the order for 10 months, at the end of 2017 we parted again and now she has started to make accusations again, I of course have evidence of this, I have been traumatized for the last three years, is there any law to protect me even if we divorce.
delboy - 13-Jun-18 @ 2:16 PM
belle - Your Question:
Hi, my husband ended our marriage out of the blue several weeks ago, reason still unclear. my husband became extremely angry the following day and asked me and my 2 sons to leave, declaring he was changing locks later that day etc. after seeking legal and police advice that due to matrimonial law he cannot do that he became aggressive, smashing up our home in a rage. he was arrested and charged with criminal damage and due to appear in court on 21st of this month. the house is in his name as is the mortgage due to my poor credit at the time of applying, even though we both sold our own houses to buy our home. I paid half of the deposit (proven by bank statement) and we drew up a declaration of trust to prove I own half shares, pay monthly online into his acc for my half of mortgage and bills. on the day he was arrested he had persistently sent intimidating texts stating it was his house and I would take a small payout or lose everything. I have sought legal advice and have a strong case that I can prove I own half. all I want is my share, nothing else and I will end the marriage and move on. his bail conditions are that he cannot enter the property or contact me directly or indirectly until after his hearing on 21st oct. my concern is that due to his personality and aggression he will frighten myself of my sons, especially after threatening to 'knock out' my 18year old son, frighten my somewhat traumatised 16 year old son and/or remove furniture and/or personal possessions.and generally make my life hell with yet more intimidation to make me leave. my solicitor has encouraged me to remain in the house but I am worried tthat once bail conditions are no longer in place he can enter at his own free will and cause more upset. until there is a fare offer of 'buy out' offered or the case is taken to court I would like to look into possibility of protecting myself, my sons, property and possession. any help would be welcome???

Our Response:
As specified in the article, you can apply for a non-molestation order if you are concerned for yourself and your children's safety. You could also apply for an occupation order. Your legal representative will be able to advise you further regarding this.
DivorceResource - 6-Oct-15 @ 1:42 PM
hi, my husband ended our marriage out of the blue several weeks ago, reason still unclear.my husband became extremely angry the following day and asked me and my 2 sons to leave, declaring he was changing locks later that day etc. after seeking legal and police advice that due to matrimonial law he cannot do that he became aggressive, smashing up our home in a rage. he was arrested and charged with criminal damage and due to appear in court on 21st of this month.the house is in his name as is the mortgage due to my poor credit at the time of applying, even though we both sold our own houses to buy our home. i paid half of the deposit (proven by bank statement) and we drew up a declaration of trust to prove I own half shares, pay monthly online into his acc for my half of mortgage and bills. on the day he was arrested he had persistently sent intimidating texts stating it was his house and i would take a small payout or lose everything.i have sought legal advice and have a strong case that i can prove i own half.all i want is my share, nothing else and i will end the marriage and move on.his bail conditions are that he cannot enter the property or contact me directly or indirectly until after his hearing on 21st oct.my concern is that due to his personality and aggression he will frighten myself of my sons, especially after threatening to 'knock out' my 18year old son, frighten my somewhat traumatised 16 year old son and/or remove furniture and/or personal possessions ...and generally make my life hell with yet more intimidation to make me leave.my solicitor has encouraged me to remain in the house but i am worried tthat once bail conditions are no longer in place he can enter at his own free will and cause more upset.until there is a fare offer of 'buy out' offered or the case is taken to court i would like to look into possibility of protecting myself, my sons, property and possession. any help would be welcome???
belle - 5-Oct-15 @ 4:52 PM
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