Share on facebook
Share on google
Share on twitter
Share on linkedin

Breach of a Non-Molestation Order Explained

A breach of a Non-Molestation order is a serious offence and can result in the involvement of the police and a prison sentence of up to five years.

In order to truly understand the seriousness of a breach of a Non-Molestation order, it’s first important that we take a look at exactly what a Non-Molestation order is. One other order frequently associated with a Non-Molestation order is an Occupation Order, and we’ll be taking a look at that as well.

So what is a Non-Molestation Order?

It is a sad fact that many people find themselves in abusive relationships. The nature of that abuse or molestation covers a very broad spectrum. It includes, but is not limited to, physical abuse, sexual abuse, financial abuse and emotional abuse. To expand upon the issue of emotional abuse, those people finding themselves in a relationship with someone exerting controlling or coercive behaviour, sustained intimidating behaviour or harassment, may well be within their rights to approach the courts for a Non-Molestation order.

 

It’s important to point out that there are no minimal levels of abuse for a Non-Molestation order to be granted – one occurrence of abuse is one too many, and victims need to know that they can take action before that abuse becomes a much more serious and on-going problem.

The Non-Molestation Order is essentially an injunction aimed at stopping the abuse from a partner or ex partner from ever taking place again. It is a civil order that is granted by a Judge or Magistrates through the Family Court.  As we stated at the beginning of this article, failure to honour the terms of this order is a criminal offence and can result in a custodial sentence of up to 5 years.

 

How do I apply for a Non-Molestation Order? 

We highly recommend seeking the advice of a divorce lawyer or family solicitor when looking to apply for a Non-Molestation order and, as always, we wish to point out that no article can ever replace the services of a qualified solicitor.

The victim of abuse, when applying to the court for a Non-Molestation Order, is referred to as the ‘applicant’ and the person against whom the order is being sought is referred to as the ‘respondent’.

This person does not have to be the spouse of the applicant – orders can be brought against anyone fitting the definition of an ‘associated person’. Associated people are defined as:

  • Two people that have been married to each other or have been civil partners
  • Who have been cohabiting
  • People who have agreed to marry or enter into a civil partnership
  • Parents of a child
  • Relatives
  • People who have upheld an intimate relationship for a significant duration.

The Non-Molestation Order will prohibit the abuser from taking certain actions – most usually approaching the victim. However, there is not one ‘blanket solution’ for all orders, hence the terms of the order will need to be thoroughly explained in court.

Other conditions may well include prohibited use of social media to contact the victim. Cyber bullying is an emotionally damaging form of abuse and the courts have the power to essentially criminalise it.

The Non-Molestation Order would usually prohibit not only the actual use of violence, but also the mere threat of violence from the abuser.

Whilst threats on social media and physical violence are two very different things, under a Non-Molestation Order, there really is no difference at all. The order is there to prohibit the user from molesting the victim, in whatever form that abuse, or molestation happens to take.

At what point should I apply for a Non-Molestation Order?

At the risk of over simplifying things – the answer here is as soon as possible. Abuse can escalate very quickly. More importantly, children that witness domestic abuse are facing a major emotional trauma, and they need to be protected from that at the earliest available opportunity.

 

Does a Non-Molestation Order ever expire?

Yes it does. A Non-Molestation Order is always granted with a specific time period – typically 12 months, although there are numerous cases of both shorter and longer periods being granted.  If towards the end of the order, but before it expires, the applicant feels that they require further legal protection, they can always ask for the order to be extended.  If the order expires, then a fresh application will have to be made.

If, towards the end of the order, the applicant still feels that they require legal protection, they can ask for the order to be extended.

What is an Occupation Order?

Occupation Orders often go hand in hand with Non Molestation Orders, and they are the two injunctions available under Part IV of the Family Law Act 1996.

The victim may well want to remain in the family home, but of course this home is likely to be jointly owned or rented by the abuser. An Occupation Order means that the courts have the right to remove the abuser from the property.

Judges can also make a condition of an Occupation Order that, despite not being able to approach the property, that the abuser is required to maintaining their contribution to household expenses such as the mortgage or rent, as well as utility bills, council tax and so forth.

Many people believe some of the terms of Occupation Orders are sometimes too severe. Clearly there are going to be complications, so it’s very important to seek advice from your divorce lawyer or family solicitor before taking any action involving the courts.

 

Breaching a Non-Molestation Order

A Non-Molestation Order is that Order breached by the abuser.  In most Non-Molestation orders there will be a Power of Arrest attached, in which case the victim must contact the Police as the first step.  It is important to note that the abuser is not allowed to make contact with the victim, but if they choose to instruct someone else to do so on their behalf then this will still be considered to be a breach of the Order.

The normal wording of the Non-Molestation orders are:

 

  1. The respondent, xxxxxxxxxxxxxxxxxxxxxxxxxxmust not use or threaten violence against the applicant, xxxxxxxxxxxxxxxxxx, and must not instruct, encourage or in any way suggest that any other person should do so.

 

  1. The respondent, xxxxxxxxxxxxxxx must not intimidate, harass or pester the applicant, xxxxxxxxxxxxx and must not instruct, encourage or in any way suggest that any other person should do so.

 

  1. The respondent, xxxxxxxxxxxxxxxxxx, must not use or threaten violence against the child/ren of the family, xxxxxxxxxxxxx, and must not instruct, encourage or in any way suggest that any other person should do so.

 

  1. The respondent, xxxxxxxxxxxxxxx, must not intimidate, harass or pester the child/ren of the family, xxxxxxxxxxxxxxxxx, and must not instruct, encourage or in any way suggest that any other person should do so.

 

  1. The respondent, xxxxxxxxxxxxxxxxxx, must not telephone, text, email or otherwise contact or attempt to contact the applicant, xxxxxxxxxxxxxxxxxxxxx, (including via social networking websites or other forms of electronic messaging) except through his/her solicitors xxxxxxxxxxxxxxxxxxxxxxxx save in as far as, and on such terms as, may be expressly agreed in writing between the respondent and the applicant’s solicitors and without prejudice to the applicant’s right to withdraw such agreement at any time. The respondent must not contact the child/ren of the family, xxxxxxxxxxxxxxxx, save for the purpose of such contact as may be agreed between the parties expressly in writing, or ordered by the court in default.

 

  1. The respondent, xxxxxxxxxxxxxxxx, must not publish or otherwise transmit on any social media (including on twitter, snapchat, facebook, Instagram or any other social media platform) statements which intimidate, harass or pester or attempt to intimidate, harass or pester the applicant, xxxxxxxxxxxxxxx, and must not instruct, encourage or in any way suggest that any other person should do so.

 

  1. The respondent, xxxxxxxxxxxxxxxx, must not damage, attempt to damage or threaten to damage, any property owned by, or in the possession or control of, the applicant, xxxxxxxxxxxxxxxxx, whether owned jointly with the applicant or not and must not instruct, encourage or in any way suggest that any other person should do so.

 

  1. The respondent, xxxxxxxxxxxxxxxxxx, must not damage, attempt to damage or threaten to damage the property or contents of the family home, and must not instruct, encourage or in any way suggest that any other person should do so.

Duration of Non-Molestation Order

  1. The non-molestation order made herein shall remain in force until xxxxxxxxxxxxxxxxxxxxx or until further order.

 

  1. A power of arrest is attached to paragraphs xxxxxxxxxxx of this order.

Liberty to Apply

  1. The respondent has liberty to apply to vary or discharge this order on notice to the applicant.

As can be seen, the conditions of such orders will make clear that the perpetrator is not permitted to breach the Order, nor too through their agent/s.  It is frequently overlooked because abusers quite often believed that by utilising a third party to threaten or to abuse, creates a legal loophole.

It does not. 

 

It clearly will rank as a breach of a Non-Molestation Order if a third party acts in a way that is used to communicate with the victim and will be dealt with accordingly.   To be clear, quite often the perpetrator will use members of their family to contact the victim, on many occasions by different means.  This will be seen a breach of the Order.

If there is a Power of Arrest attached to the Order the Police will formally arrest the perpetrator and they will be dealt with through the Criminal Justice system.  Breach of a Non-Molestation Order is classed as a criminal offence.  If there is an initial or a minor breach the abuser will face a fine rather than a custodial sentence.  However, very serious or repeated breaches can lead to a sentence of up to five years imprisonment.

It is important that all parties involved understand the terms of a Non-Molestation Order.  The application that is made to the Court, if there is no Power of Arrest is for the party to be committed for breach of order.  The purpose of the Order is to protect the victim and provide a level of protection that they need.  If the Respondent, who has been served with such an order is unsure of their rights, then they must always seek advice of a divorce lawyer or family solicitor, particularly as there is normally a return date on any application for a Non-Molestation Order or any further application to have them ousted from the home.  There are occasions, however where the orders are made with the other side having the right to discharge the Order on 24 hours notice to the applicant.

It is advisable for the victim to always keep a copy of the Order with them at all times in case they are not at home if the Police have to be called if they are exposed to any further abuse by the perpetrator or any agents acting on their behalf.

There are occasions where, in addition to a Non-Molestation Order, a victim applicant will seek to have the other party removed from the matrimonial home.  It should be noted that this is a draconian type of order and it is rare for the courts to make these orders unless there is very clear and unequivocal evidence of harm.  This harm can include emotional harm but there must be proof of both physical and emotional harm by supporting evidence, for example medical reports, hospital reports, police reports, psychiatric reports, and the like.  There must also, in many cases, be other witnesses to physical harm in order to achieve the removal of the spousal partner from the home.  These orders, once made, will be in the following form:

Occupation Order – Declaration under Section 33 of the Family Law Act 1996

  1. The court declares that the applicant, xxxxxxxxxxxxx, is entitled to occupy the family home and its surrounding gardens, land and outbuildings.

 

Occupation Order under Section 33 of the Family Law Act 1996

  1. The respondent, xxxxxxxxxxxxx, shall allow the applicant, xxxxxxxxxxxxxx to occupy the family home and its surrounding gardens, land and outbuildings as her home.

 

  1. The respondent, xxxxxxxxxxxxxxxxx, must not occupy the family home and its surrounding gardens, land and outbuildings from xxxxxxxxxx until further order.

 

  1. The respondent, xxxxxxxxxxxxxxxx, shall leave the family home and its surrounding gardens, land and outbuildings xxxxxxxxxxxxxxxxxxxxxxx.

 

  1. Having left the family home and its surrounding gardens, land and outbuildings, the respondent xxxxxxxxxxxxxxxxx, must not return to, enter or attempt to enter the family home or go within 50 metres of it, except on such occasions and on such terms as may be expressly agreed between the parties in writing.

 

  1. The respondent, xxxxxxxxxxxxxxxxxxxxxxx, must not obstruct, harass, or interfere with the applicant’s, xxxxxxxxxxxxxxxxxxxxxxx, peaceful occupation of the family home and its surrounding gardens, land and outbuildings.
  1. The applicant xxxxxxxxxxxx shall:
    1. keep and use his/her car and the furniture and contents of the family home and take reasonable care of the same, save that the respondent may remove from the family home:
      1. [Please complete. These items can include printers/monitors, laptops, computers, bicycles,
      2. The Respondent’s personal effects

(this paragraph is without prejudice to any issue as to contents which may arise in any financial remedy proceedings)

 

  1. The Respondent shall pay the following outgoings until further order:

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Duration of Occupation Order under Section 33 of the Family Law Act / Power of Arrest

  1. Paragraphs xxxxxxxxxxxxxof this Order shall last until xxxxxxxx unless it is set aside or varied before then by an order of the court.

 

  1. A power of arrest is attached to paragraphs xxxxxxxxxxx of this order.

Liberty to Apply

  1. The respondent has liberty to apply to vary or discharge this order on notice to the applicant.

As can be seen, the general conditions of such orders are that the other party cannot approach the property within a certain radius and, in addition, that the respondent would be required to maintain certain contributions to the household expenses, such as the mortgage or rent or utility bills, Council Tax, and so forth.

Before issuing an application to have your partner removed from the home it is vital that you take proper legal advice.  Launching off into such an application, if you are not properly prepared, or the application is ill-advised and inappropriate could lead to an Order for Costs being made against you.

 

Costs for an Application for Non-Molestation Orders or Application to remove a spouse from the home

 Costs can, in certain circumstances, be awarded to you if there is clear evidence of actions and behaviour on the part of your spouse or partner that have led to the application.

Sometimes the costs are dealt with on a return date – ie a second hearing where the Court will have both parties present to test the evidence.  On an application to have the spouse removed from the home, more often there will not be costs granted unless the evidence is very clear.

It is not a foregone conclusion that costs will be awarded on such applications.

Got a Legal Problem?

Table of Contents

Follow Us

Recent Posts

How to Divorce a Narcissist
Divorce - Separation - Dissolution
Jamie

How to Divorce a Narcissist

Over the past 5 years there has been an explosion of cases in which there has been reference to either a narcissistic

Vannessa's Tips on YouTube

Scroll to Top