What is a non-molestation order?
A non-molestation order prohibits your partner or spouse from using or threatening violence against you or your children, or intimidating, harassing or pestering you. It can contain very specific provisions depending on the particular type of harassment happening to you.
Who can apply?
To apply for a non-molestation order you must be an associated person, which is defined in the applicable legislation. Former and current spouses, civil partners and cohabitants are included, as well as fiancé(e), relatives, people living in the same household, the parents of children in the house and those who have been in intimate personal relationships of significant duration. Your family lawyer will be able to advise you whether you can apply.
What is the procedure?
The person applying to court for the injunction must complete a form and a witness statement setting out in detail what has taken place. Although usually the other person is told before a court application is issued, there can be occasions when this is not appropriate such as if it would prevent you making the application or would put your safety or the safety of any children at risk. The person asking the court to help is the applicant and the other person is the respondent. Usually, the respondent will prepare a witness statement in response to your statement filed in support of your application. .
When the court receives your application, it will fix a hearing to decide what should happen.
How does the court decide?
In deciding whether to make an order, the court considers the health (mental and physical), safety and well-being of the applicant or any relevant child. It must be satisfied that there is evidence of molestation and that the applicant or children need protection from the court. Molestation involves any form of physical, sexual or psychological molestation or harassment that has a serious impact on the health and well-being of the applicant or any relevant child. Molestation is not only defined as violent behaviour; it may be other forms of behaviour including coercive or controlling behaviour.
Any non-molestation order the court makes will contain a list of things that the respondent is prohibited from doing. The order will usually last for a year but it can be for longer. Breach of a non-molestation order is a criminal offence and the police can arrest someone who is disobeying an order.
Undertakings
When considering a non-molestation order, it is possible to give undertakings, which are binding promises to the court, instead of a court order. The difference is that breach of an undertaking is contempt of court, which can be punished by committal to prison, but it is not a criminal offence and no power of arrest can be attached to it.
Lyons Davidson will advise on your eligibility for free Legal Aid. Private fixed fee meetings are also available.
