Be careful who you associate with – exploring the limits of ‘associated persons’ when applying for a non-molestation order under the Family Law Act 1996

People in familial and romantic relationships often need, and should have access to, protective court orders that shield them from the abuse of others. However, where do we draw the line when it comes to how close that relationship needs to be before a non-molestation order can be granted?

Legal Background

Section 42 of the Family Law Act 1996 (‘the Act’) gives the court the power to make non-molestation orders. Such orders can prohibit a person from ‘molesting’ another person who is associated with them, or a relevant child.

The court can make such an order if there has been ‘molestation’ and the court is to have regard to all the circumstances, including the need to secure the health, safety and well-being of the applicant or relevant child. 

The terms ‘molestation’ and ‘molesting’ are not defined in the Act. In Davis v Johnson [1979] AC 264 (under the old Domestic Violence and Matrimonial Proceedings Act 1976), Lord Scarman suggested a definition, relating to the ‘mischief’ the Act intended to remedy. He held that:

‘…the mischief against which Parliament has legislated by section 1 of the Act may be described in these terms: conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. But there is more to it than that. Homelessness can be as great a threat as physical violence to the security of a woman (or man) and her children. Eviction – actual, attempted or threatened – is, therefore, within the mischief: likewise, conduct which makes it impossible or intolerable, as in the present case, for the other partner, or the children, to remain at home.’

It was held in Horner v Horner [1983] 4 FLR 50 that ‘…the word 'molesting'…does not imply necessarily either violence or threats of violence. It applies to any conduct which can properly be regarded as such a degree of harassment as to call for the intervention of the court.’

Non-molestation orders can be powerful, yet potentially draconian, orders. While they are civil orders, they can make actions that are in of themselves legal into a crime. For example, they can prohibit a respondent from contacting an applicant or going to certain geographical areas. In of themselves, these would ordinarily be lawful actions. 

Breach of a non-molestation order can be prosecuted as a crime under s.42A of the Act, with a maximum sentence of resulting in five years’ imprisonment. While there is a defence of ‘reasonable excuse’ to the crime of breaching an order, this defence has been construed narrowly by the courts. 

Associated persons 

In order for the court to have the jurisdiction to make a non-molestation order, an applicant would have to be either an associated person or relevant child of a potential respondent. Section 62(3) of the Act gives a long list of who can be an associated person. In short, they are people who:

1. are or have been married to each other; 
2. are or have been civil partners of each other;
3. are cohabitants or former cohabitants; 
4. live or have lived in the same household, otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder;
5. are relatives;
6. have agreed to marry one another (whether or not that agreement has been terminated);
7. have or have had an intimate personal relationship with each other which is or was of significant duration;
8. have entered into a civil partnership agreement;
9. in relation to any child, they are both either are the parents of the child or have parental responsibility of that child; 
10. are parties to the same family proceedings.

The term ‘relatives’ is further defined in s.63(1) as:

1. the father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandmother, grandfather, grandson or granddaughter of that person or of that person’s spouse, former spouse, civil partner or former civil partner; or
2. the brother, sister, uncle, aunt, niece, nephew or first cousin (whether of the full blood or of the half blood or by marriage or civil partnership) of that person or of that person’s spouse, former spouse, civil partner or former civil partner.

Relatives also includes, in relation to a person who is cohabiting or has cohabited with another person, any person who would fall within paragraph (a) or (b) if the parties were married to each other or were civil partners of each other.

Discussion

The majority of the time, the court will not blink at whether there is jurisdiction to make a non-molestation order. Many of these ‘associations’ are self-explanatory and the vast majority of applicants and respondents will fall easy into one or more of the categories. However, there is some ambiguity as to some of the categories. How do you know if someone is a cohabitant? Can the term ‘relative’ be extended? What constitutes an intimate personal relationship of significant duration? Sadly, there is only a handful of reported cases on these important issues. 

Cohabitants

In G v F (Non-Molestation Order: Jurisdiction) [2000] Fam 186, a woman had applied for a non-molestation order against her former boyfriend. The issue was whether or not they were cohabitants. While they spent multiple nights at each other’s property, there was a question of whether the lived together and, if they did, if it actually was cohabitation. On appeal, it was held that they parties did cohabit and therefore there was jurisdiction to make an order. IN deciding if the parties were cohabitating, there were a range of factors the court could take into account. The six ‘admirable signposts’ of Crake v Supplementary Benefits Commission; Butterworth v Supplementary Benefits Commission [1982] 1 All ER 498 were helpful, being:

1. whether they are members of the same household;
2. whether the relationship is stable; 
3. whether there is financial support; 
4. whether there is a sexual relationship;  
5. whether they have children; and
6. whether there is public acknowledgment.

It was also made clear that the Act should be given a purposive construction. Jurisdiction should not be declined unless the facts are plainly incapable of being brought within the statute. The court stated that it would be unfortunate if s.62(3) was narrowly construed so as to exclude borderline cases where swift and effective protection for the victims of domestic violence is required.

Relatives 

However, this ‘purposive construction’ could only go so far. In the case of M v D [2021] EWHC 1351, the applicant had been threatened and abused by her step-nephew (i.e. her sister’s stepson). Since a nephew by marriage, instead of blood, could be a relative (and therefore an associated person), it was argued that a step-nephew could be read into the definition in the Act. It was argued that, in the ever-increasing range of diverse and blended families in this day and age, the court should approach a purposive position and read the definition in.

Despite generally looking at the purpose of the Act to protect those in familial relationships, the court did not extend the term relative to include a step-nephew. While other ‘step’ relations were included specifically in the Act, step-nephews and nieces were not. If Parliament intended to include such relationships, it would have. This was one ‘purpose’ too far. 

Intimate relationship of significant duration 

While likely to be caught by other categories, more and more couples remain unmarried and living in different households. Unless they have children together, they only avenue available to them might be to argue that the parties were in an intimate relationship of significant duration. But what does that actually mean?

In D v T [2023] EWFC 97 (B), the applicant was a 14-year-old and the respondent was a 15-year-old. They were in a relationship from 05 January to 01 May of the same year. There had not been any sexual intimacy (due to their ages), but the parties would kiss, text & message each other and the applicant considered herself the respondent’s girlfriend. While there was no case law that the judge could find on this specific issue, the court referred to a legal text making it clear that, when it created the Act, it was not Parliament’s intention to include platonic friendships or brief sexual encounters such as one-night stands for protection under the Act; intimacy and duration were the key elements.

The court made it clear that a sexual relationship was not a necessary factor for an intimate relationship, although obviously that would be good evidence for one. Any determination as to whether a particular application falls within the statutory criteria had to be set in the context of the circumstances of the case and indeed the relevant characteristics of the applicant and respondent.

In relation to teenage intimate relationships, the court gave the following non-exhaustive list of factors in relation to applicants and respondents in the context of such an application:

1. whether they spend time with each other; 
2. whether they describe each other as boyfriend and girlfriend to themselves and to their friends; 
3. whether they say and send each other messages expressing their loving or affectionate feelings for each other; 
4. whether they act in ways commensurate with their age and stage of development that both subjectively and objectively can readily be said to be a relationship that is more than casual or fleeting in terms of its depth and characteristics; and 
5. It does not require the relationship to be a facsimile of an adult intimate personal relationship.

In relation to significant duration the court had little hesitation in finding that four months is a significant duration for parties of their respective ages to be in a relationship. The court made it clear that it was no possible to ascribe a ‘time-limit’ whereby a relationship goes from being of ‘insignificant’ to ‘significant’ duration. The setting of any such evaluation is of significant importance; in one context four months is no time at all and in another it can be a very long time indeed. In the circumstances of the relationship in the case, on the facts known to the court, the judge had little hesitation in determining that the qualification imposed by the Act is satisfied. 

Gaps in protection?

When Parliament created non-molestation orders and the associated persons who could apply for them, it wanted to confine the available protection to a limited amount of familial and romantic relationships. 

If one does not satisfy any of the criteria of an associated person (or relevant child) in the Act, then the court cannot look at the merits of an application for a non-molestation order, no matter how strong they are and no matter how much an applicant needs protection. If one does not satisfy the legal requirement of an associated person, the court simply has no jurisdiction to entertain an application. 

However, the common solution to this apparent gap is to make an application under the Protection from Harassment Act 1997. One can seek an order for damages, as well as an injunction to prohibit the harassing behaviour. Such an order is very similar to a non-molestation order, in that it can ban a respondent from doing certain actions, such as contacting an application or going near their home and/or place of work. Breach of a Protection from Harassment Act order without a reasonable excuse can also be a criminal offence. 

There is no need for there to be some kind of preexisting familial or romantic relationship in order for the court to have jurisdiction; any person can apply for such an order. The ‘flaw’ in the Protection from Harassment Act 1997 is that the court only has jurisdiction if there has been a ‘course of conduct’. This means that the actions must be at least two occasions. A ‘one-off’, no matter how egregious, will not confer jurisdiction to the court. If the actions and less serious and more spread out, there may not even be a finding of a ‘course of conduct’. 

This means that potential applicants who do not come under the Family Law Act may be in the unenviable position of waiting for a second incident of harassment in order to apply for a protective order under the Protection from Harassment Act.

The civil courts are not the only avenue for protection. Both the Crown Court and Magistrates’ Courts can also make restraining orders on the conviction or acquittal of criminal defendant. 

Conclusion 

When there is abuse and harassment between family members and romantic/sexual partners, a person will likely be able to turn to the Family Law Act and seek a non-molestation order, which such an application being decided on the merits. 

However, with the rise of blended and unorthodox families, there likely will be some situations that fall outside the Family Law Act, making people ineligible to apply for the protection of a non-molestation order. Turning to the Protection from Harassment Act might plug most of the gaps caused by this, but potentially not all. 

For example, there could be a situation where there has been a one-night stand, or an intimate relationship of insufficient duration, and only one instance of significant molestation/harassment. In that situation, a person may not be able to apply under the Family Law Act or the Protection from Harassment Act. While such a situation is likely to be rare, it would not be impossible. 

Perhaps the answer is to create a single ‘restraining order’ available in all courts and all people, with the issue being whether there has been harassment and if the court needs to intervene to protect people. The slightly archaic language use of ‘non-molestation’  under the Family Law Act may also cause potential applicants and respondents fail to understand the importance, meaning or implication behind such orders. 

It is important to make sure an application under either Family Law Act or the Protection from Harassment Act is correct. Getting it wrong could result in a lull of protection, or no protection at all. There are also potentially grave criminal consequences if an order under either Act is made against a person. In either situation, either as an applicant or respondent, it can be critical to get timely legal advice in order to obtain the best outcome possible. 

9th Oct 2026

Tom Gilchrist

Call 2018 (2016 - New Zealand)