Non-molestation orders

Posted on Sunday, 30th Aug, 2015 at 12:08:06 AM
Non-molestation orders are a civil court order designed to protect people from domestic violence. They are designed to prevent an abuser from molesting the applicant for the order, and can in some circumstances be used to protect their children as well.

Non-molestation orders also forbid the abuser from asking others to harass or intimidate the applicant, and can also be extended to forbid the damage or disposal of property.

Who can apply for a non-molestation order?
It is not necessary to have been the subject of domestic violence in order to apply for a non-molestation order, although in practice it is easier to obtain one if you have been subjected to violence. It is possible to apply simply
if your partner has been harassing or intimidating you.

You can only apply for a non-molestation order against someone a court would recognise as being 'legally associated' to you. This means you must have been married to, engaged to or in a civil partnership with the abuser. Alternatively, you could have been living with the abuser or related to them, or have had a child together.

You can also apply if you can show a significant, intimate personal relationship with the abuser. This is often demonstrated by a sexual relationship of at least six months' duration.

What is the effect of a non-molestation order?
If you successfully apply for and receive a non-molestation order then your abuser becomes the subject of a 'power of arrest'. This means that if the abuser breaches the terms of the non-molestation order, they can be arrested and charged with a criminal offence.

The maximum penalty for breach of a non-molestation order is up to five years' imprisonment. It is worth noting, however, that judges and magistrates are often mindful not to impose a custodial (prison) sentence even when the order is broken, and so you should not apply believing this will always happen if your abuser breaches the terms of the non-molestation order.

How can I get a non-molestation order?
Non-molestation orders are available by application to a court. You should seek legal advice prior to making your application from an experienced solicitor. Applications are often made 'on notice', which means your abuser will be aware of the application against them.

If you are fearful that this notification may engender further abuse or violence, then it is possible to apply for a non-molestation order 'ex-parte', which means your abuser is unaware of the proceedings. But the application does not become effective until it is served on your abuser.

If a non-molestation order is made 'ex-parte', then there will often need to be a second hearing later on with both parties present to allow the other party a chance to respond and challenge the order.

A without notice non molestation order is made to section 45 of the Family Law Act 1996. By subsection (1), the court may make such an order where it is "just and convenient to do so". By subsection (2), in considering whether to exercise its powers to make an order ex parte, the court must have regard to all of the circumstances including:

(a) any risk of significant harm to the applicant or a relevant child, attributable to conduct of the respondent, if the order is not made immediately;

(b) whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately; and

(c) whether there is reason to believe that the respondent is aware of the proceedings but is deliberately evading service and that the applicant or a relevant child will be seriously prejudiced by the delay involved "in effecting substituted service".

Whenever an order has been made ex parte, there must be a full hearing as soon as just and convenient thereafter. There are no circumstances in English law in which it is appropriate to make an ex parte order without provision for review once an order has been served. Any such order would be unlawful. It is the duty of the court to list for a full hearing, as required by section 45.

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