The Ultimate Guide To Non-Molestation and Occupation Orders in Divorce

Vardags has vast experience acting in high net worth and ultra high net worth divorces in England and Wales; such divorces are rarely straightforward. They typically involve consideration of company valuations, international trusts, and jurisdiction disputes, among many other complex issues.

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What are Non-Molestation Orders?

A non-molestation order (or “non-mol”) is one of the court’s key powers to protect the vulnerable party in cases involving domestic abuse. These orders are available whether you have been married to your ex-partner or not. An application must be made on your behalf to the appropriate court.

If you require advice or representation on a non-molestation or occupation order, click below for a free initial consultation with one of our expert divorce solicitors.

What comes under domestic abuse?

Domestic abuse, often referred to as domestic violence or intimate partner violence (IPV), is a pattern of behaviours used by one partner to maintain power and/or control over the other in a relationship. 

It can include, but is not limited to, the following: 

• Coercive control (a pattern of threats, intimidation, degradation, isolation, deprivation and control – which may or may not involve the use or threat of physical, sexual, financial or reputational harm – to frighten, punish or simply dominate the victim).
• Psychological and/or emotional abuse 
• Physical or sexual abuse 
• Financial or economic abuse (a pattern of excessive control over the victim’s finances or financial freedom, or of restricting their access to essential items such as food and clothing)  
• Online or digital abuse (reading emails, checking texts, following the location of social media posts). 
• Harassment and stalking 

What comes under coercive control?

The Serious Crime Act made controlling or coercive behaviour in an intimate or family relationship where the behaviour has a serious effect on the victim an offence. Coercive control has been a criminal offence since 2015. Importantly, the parties need to have been living together to fall under the legislation.

Below are examples of coercive control, which could entitle you to a non-molestation order:

• Isolation of the victim from friends and families 
• Turning family or friends against the victim 
• Gaslighting 
• Psychological and emotional abuse, including emotional blackmail 
• Threats, and acts of, physical and sexual abuse 
• Stalking and harassment 
• Digital abuse 
• Financial and economic abuse 
• Parental alienation 
• Intimidation 

What are some common terms for a non-molestation order?

A non-molestation order prevents the abuser from harassing or threatening you.

The provisions of the order can be specifically drafted to address your own situation.

Depending on the severity of your case, the non-molestation order can be drafted to prevent your spouse from contacting you, or going near you, or doing the same in relation to specified loved ones or staff.

How long can a non-molestation order last?

The term of a non-molestation order will be set out within the order – they are usually granted for 6-12 months.

Terms longer than 6 months will only be appropriate in cases of severe, or long-term abuse. The applicant can apply to have the order extended, so long as the order has not expired, if they feel their safety would be put at risk when the order ends.

What happens if someone breaches a non-molestation order?

A non-molestation order only comes into force once it has been served on the person it binds. An individual cannot therefore breach a non-molestation order of which they are not aware. However, this means that in the event of breach, professed ignorance of the order is no defence.

If someone breaches a non-molestation order “without reasonable excuse”, that person is guilty of a criminal offence, and can face significant penalties. They can be arrested immediately, even if they have committed no other crime. Once an order is in place, your local police will be notified, so they can help protect you if it is broken.

On conviction, the Sentencing Guidelines dictate that the typical range of sentence for breach can vary from a fine to 4 years’ imprisonment, with a maximum sentence of 5 years’ imprisonment.  

If the circumstances of the breach are characterised by any “aggravating factors”, the sentence can be even longer. These factors include, but are not limited to, the following:

• The breach was committed shortly after the order was made;
• The offender has a history of disobedience to court orders;
• The breach involved a further offence (not separately prosecuted);
• Contact arrangements with a child were used as a pretext to instigate the breach;
• The breach resulted in the victim being forced to leave their home;
• Children or family members were impacted by the breach;
• The victim is particularly vulnerable;
• The offender has taken steps to prevent the victim from reporting an incident or seeking assistance.

Breach of a non-molestation order will also appear on both criminal records and permanent police records.

What if we live together? What if they own the house?

If you…

1. own the home in which you live;
2. are not married to your spouse; and
3. your spouse has no legal entitlement to the property

…Then the non-molestation order can also stop them from coming to your home. 

But if any of the above does not apply to you, you will need to apply for an occupation order.

Occupation orders are very similar to non-molestation orders but deal specifically with who lives in a home. If they are breached, they carry similar penalties.

What are Occupation Orders?

An occupation order is one of the court’s key powers in regulating the occupation of a property, usually the Family Home. It controls who lives in the home, and who has access. It can be used to exclude anyone who uses or threatens violence, as well as any perpetrator of psychological or sexual abuse. It can prevent them from entering, or approaching, or interfering in any way with the property’s occupation.

Occupation orders do not change the legal ownership of the Family Home, and are normally used to provide a short-term solution until decisions are made eventually by consent, or by court order, over who should own the property, or whether it should be sold.

What if I’m not married to my partner?

Again, this order is available whether you have been married to your ex-partner or not

What happens if my partner breaches an occupation order?

If a person breaches an occupation order, that person is in contempt of court. They can be brought before a judge and fined or imprisoned for breaching its terms.

How long do they take to obtain?

If you feel at risk of imminent violence you should contact the police (dial 999).

It is possible to apply for an occupation order without notice to the other party, and on an urgent basis. Occupation orders can be obtained in a matter of a few hours if necessary, with the right legal guidance.

An occupation order can be drafted, and ready to be filed at court, in advance, for instance, in advance of any conversation about separation, or any divorce application, to ensure the applicant is safe and properly housed before starting anything.

Is an occupation order the only way?

Where a victim feel such orders are too strong, it is possible to agree undertakings (a solemn promise to the court). If an undertaking is broken, the breach still results in Civil “contempt”.

Lastly

If you fear domestic violence, we can help you get these orders, alongside advising you on protecting yourself. We will advise you on the appropriate medical or psychological evidence which should be recorded in court while building up evidence in your case. As well as court orders, we can put you in contact with providers of specialist security so that you can have peace of mind in your home.

If you feel at risk of immediate domestic violence, please contact the police straight away (dial 999).

Please note, in circumstances where calling the emergency services might inflame the situation further, you can simply quietly press 55 once you have dialled 999, and the emergency services will go to the address from where you have called without you having to say anything. 

My partner monitors my online activity closely: how can I contact Vardags safely?

1. Browse privately or on ‘incognitio mode’ to ensure that your browsing information, cookies, as well as any information entered into forms is not saved, so no trace is left after you quit the session. 

To do this: right click on your browser’s icon, after which the option to start a New Window versus a New Private Window should pop up. Click the Private Window option - the browser should tell you that private browsing has been enabled. Alternatively, you should be able to search for the private browsing option in the Help section of your browser’s toolbar. Please note, however, that downloads, bookmarks, and reading list items will be saved)

2. Delete your browsing history

To do this: Use the ctrl + H shortcut to open up your brower’s search histroy. Alternatively, there should be a history tab in your browser’s toolbar. Search for any entries featuring our website and manually delete these. Any saved search terms - your Google search engine will automatically save certain keywords, so that they pop up as suggestions when you begin to type)

3. If at all possible – use a computer outside of your home: a local library, a workplace, a friend’s house.

My partner monitors me closely in general: how can I contact Vardags safely? 

1. If they look through your texts, amend any Vardags contact details with a family friend’s name, and delete any texts they might see.
2. If they might overhear any call, simply instruct Vardags never to call you directly, or only to call at a specific time of day, or to use our Whatsapp service instead. If they pick up accidentally, please rest assured we will never mention who we are or why we are calling.
3. If they look at your call history, delete your call history to Vardags.

What if I have a domestic or occupation order against me?

Though uncommon, false allegations of domestic violence can be extremely distressing. As leading family lawyers, Vardags can defend such claims while putting forward your case. Where false allegations are made before the court, the consequences can be very serious.

Under an occupation or non-molestation order you could be removed from your home or arrested by the police.

Such orders can also have a significant impact on your professional life or limit the time you spend with your children after separation. Vardags are experienced at dealing with such claims. We will ensure that the correct version of events comes before the courts, preventing false allegations from damaging your life or reputation.

Vardags’ in-house criminal defence experts can also help you should false allegations of domestic violence result in arrest or criminal charges. If you have been served with an ex parte order (where your spouse has already visited court without notifying you) we can help you present your case at the return date alongside getting any orders currently in place lifted.