I've been served with a Non-Molestation Order - what should I do?

Over the last decade, injunctions made under the Family Law Act have increased by around 50%, as the law related to Domestic Abuse has continued to expand.

Obviously, there are many cases in which people need the protection of the Court, and an Order is often the best way to make sure that they are safe, but that does not make it any easier to find out that your former partner has applied for an Order against you.

What is a Non-Molestation Order?

A Non-Molestation Order is in force as soon as it is served upon you, and will forbid you from doing certain things, or instructing anyone else to do them on your behalf.  These things will usually include communicating with your former partner, using or threatening violence against them, harassing them online or in person, and coming within a certain distance of where they are living or working. 

These Orders are made where the Court believes that, if the allegations are true, the person applying to the Court is at genuine risk of harm, and needs protection.  They are served on the police as well as on you, and if you do anything that you are forbidden to do, you may be arrested.  The penalties for such a breach can include up to 5 years in prison.

The Court has the power to make these Orders “without notice” where, if the applicant is telling the truth, the Judge fears that they will be at risk of significant harm, or prevented from seeking protection, unless an Order is made immediately.  This means that for many people, the first they know about the application is when it is handed to them by a Court Bailiff or Process Server, together with a statement setting out the allegations made, and the Order itself.

What should you do if you’ve been served with a Non-Molestation Order?

If you have been served with such an Order, you must comply with the terms to avoid being arrested, even if you do not believe that your former partner is telling the truth.

You should also seek legal advice from a family lawyer as soon as possible.  The Court will have listed a Return Hearing to discuss whether the Order should remain in force and allow you to have your say; this will usually be within 14 days of the application being made.  If you do not attend this Hearing, then the Order will almost certainly continue without your input, so it is important to discuss your case with a suitably qualified lawyer as soon as you can.

Can I defend a Non-Molestation Order?

At this stage, the Order has been made based just on what your former partner has said.  The Court has not heard any evidence and decided that you have done the things alleged, but is saying that if you had done them, then your former partner would be entitled to protection.

Very often, you will have no intention of doing the sort of things that the Order forbids, and so one option is to allow the Order to continue – this is usually the quickest and cheapest way of dealing with matters.  The Order must record that no findings have been made against you and that you have not admitted any of the allegations, so that your former partner cannot rely on these in any other proceedings, for instance in relation to children.

This may not, however, be the best option for you, particularly if the terms of the Order prevent you from going somewhere you need to be, or otherwise doing something that you need to be able to do.  A solicitor will be able to advise you of the best course of action in your specific circumstances.

You can, for instance, consider giving an Undertaking, as long as no allegations of physical violence have been made.  These are formal promises to the Court, but do not carry the same power of arrest as the Order.

It is also possible to defend the application, in which case you will be given permission to file a statement in response, and the matter will be listed for a contested Hearing, at which you, your former partner, and any witnesses on which you may each choose to rely will need to give evidence.  You will need to attend the Return Hearing to explain that this is your intention, and it is best to seek clear advice before taking this step, to make sure that you fully understand what this will involve. 

Can I get Legal Aid to help me / claim my costs back from my partner?

Unfortunately, although your partner may have been able to get legal aid to make the application, you will not be able to secure the same funding to defend it, however if you speak to a solicitor they will be able to advise you as to the best way forwards and the most cost effective approach in your case.

In the Family Courts it is rare that an Order is made requiring one party to pay the other party’s costs, and so this is not something to rely on; although there are some instances where a Costs Order may be appropriate if you defend the proceedings and the Judge finds that the application should not have been made in the first place, these are very rare, and your solicitor will be able to discuss these with you if they are relevant in your case.

If you have been served with an Order, or are concerned that your partner may be planning to make an application, get in touch with us as soon as possible and we would be happy to assist you.