What is a non molestation order?

A non-molestation order is a type of injunction made under Part IV of the Family Law Act 1996 to protect named individuals from abuse, harassment, threats of and actual violence.

What does ´molest´ mean?

The term is not specifically defined, but can include violence and threats of violence as well as harassment.

Who can apply for a non molestation order?

You can only apply for a non-molestation order against someone you are ´associated´ with e.g. someone:

• You are or were married to;
• You are or were in a civil partnership with;
• You are or were engaged to marry;
• You are or were to enter into a civil partnership with;
• You are or were living with as husband and wife (including civil, same sex relationships);
• You live with or have lived with (but excluding tenants, employees, boarders and lodgers);
• You are related to (s/he is a member of your family);
• With whom you have a child;
• Who has or had parental responsibility for your child;
• Who is party to family proceedings (in court), in which you are involved;
• With whom you have or have had an intimate personal relationship which is or was for a significant period of time.

How long does a non molestation order last?

A non molestation order can be made for a specific period of time, or until a further order is made by the court.

It is important to be aware that restrictions set out in the non molestation order and the order itself do not come into force until served on the named parties (if the order is made without the other party present in court).

Ex Parte, On Notice and Return Hearings

Applications for non molestation orders are sometimes made without the other party being present (ex-parte). An ex-parte application should be considered if forewarning of an application risks the safety of the person applying to court, or their children.

The court often takes a cautious approach to safety and wellbeing, and grants the non molestation order without having heard evidence from the other side. However, in such circumstances the court is likely to set a further hearing date (or the other party may request one) to enable arguments and evidence against the need for such an order to be heard.

As mentioned earlier, it is important to be aware that restrictions set out in the non molestation order and the order itself do not come into force until served on the named parties.

If the application is considered by the court with the other party present, there is a possibility that the court will make a non molestation order as a precautionary measure and set a further hearing date to consider evidence as to whether the order is warranted and whether any allegations are justified.

Alternatives

An alternative to a non molestation order is for a party to give an undertaking (a promise) to court that they will not carry out a specified action or activity. In some circumstances, the court may deem it more appropriate that a cross-undertaking is given, where both parties give undertakings not to molest or harass each other.

Also see our guide on Undertakings.

Undertakings

What happens if a non molestation order is broken?

The penalty for breaking a non molestation order can be up to five years in jail. Breaking a non molestation order is a criminal offence. Since July 2007, even though a non molestation is a civil order, a power of arrest is attached to the order (e.g. if the order is broken, the party in breach may be arrested). If the order is broken and the other party arrested, the matter should return to court within 24 hours.

Applying to court

If you are using a solicitor, they will do this for you. Otherwise, download and complete Form FL401. Print and sign three copies of the form.

Also download and read How can it help me? Part 4 of the Family Law Act 1996 - Domestic Violence.

It will assist both you and the judge if you write a brief Position Statement. Try to keep the position statement to two to three pages, setting out briefly why you are applying for contact, and why you believe it to be in the children´s best interests. Be factual, and try to be objective in what you write, and the language you use.

A position statement is not essential, but it helps inform the judge, briefly and ideally succinctly, why you are applying for the order, and can assist you in court so you do not forget any points you wish to raise.

Before setting off for the court building, ensure you have with you:

• Three completed and signed copies of the forms;
• Three copies of your Position Statement.
• Hand in the court forms, fee and position statement to the court´s administration department.

Legal Advice and Assistance

A non molestation order does not guarantee safety, and if you believe yourself or your children to be at risk of significant harm, we recommend you also obtain legal advice from a solicitor. If you believe you cannot afford a solicitor, you may be eligible for legal aid. A solicitor will be able to confirm whether or not you are eligible.