Restraining Orders in the UK: Non-Molestation and Occupation Orders Explained

There Is No Such Thing as a Restraining Order in Family Law

The term restraining order is not used in English family law. What most people mean when they talk about a restraining order is one of two things: a non-molestation order, which prohibits harassment, intimidation, and violence, or an occupation order, which regulates who can live in or enter the family home.

Restraining orders do exist in criminal law, where they can be made under the Protection from Harassment Act 1997 following a criminal conviction. But in the family court context, the relevant orders are non-molestation orders and occupation orders under the Family Law Act 1996.

Non-Molestation Orders

A non-molestation order prohibits the respondent from molesting the applicant or any relevant child. Molestation covers physical violence, harassment, intimidation, pestering, using or threatening violence, and in some cases coercive control. The order can be made against a spouse, former spouse, civil partner, cohabitant, former cohabitant, or anyone with whom the applicant has had an intimate personal relationship.

You apply using Form FL401 at your local family court. The application can be made without notice to the respondent (ex parte) where there is an immediate risk of harm. The court can make the order the same day. Where the application is with notice, the respondent has the opportunity to respond before the order is made.

Breach of a non-molestation order is a criminal offence. The respondent can be arrested and prosecuted. This is what gives the order its teeth.

Occupation Orders

An occupation order regulates who has the right to occupy the family home. It can require the respondent to leave the property, prohibit them from returning, exclude them from a defined area around the property, or allow the applicant to return to a property they have left. Occupation orders are more difficult to obtain than non-molestation orders and are not made lightly, as they deprive the respondent of their home.

Courts apply what is called the balance of harm test: if the applicant or a relevant child is likely to suffer significant harm attributable to the respondent's conduct if the order is not made, and that harm is as great or greater than any harm the respondent would suffer, the court must make the order.

Applying Without Notice

In urgent cases, both orders can be applied for without the respondent knowing, using the without notice (ex parte) procedure. The court can make an order the same day and the respondent is then served with it and given the opportunity to challenge it at a return hearing, typically two weeks later. Without notice applications require strong evidence of immediate risk.

What Happens When Orders Are Breached

Breach of a non-molestation order is an arrestable criminal offence, prosecuted in the magistrates' court. It carries a maximum sentence of five years' imprisonment. Breach of an occupation order is a contempt of court and can be enforced through the court's contempt powers, including committal to prison.