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Ask MARCUS Malin Your Own Question
Category: Family Law
Satisfied Customers: 2764
Experience:  Consultant Solicitor at Setfords
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MARCUS Malin is online now

I had a non molestation order out against my husband. Our

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I had a non molestation order out against my husband.
JA: Was a protective order issued? What were the basic terms?
Customer: Our house burnt down in May and we moved into temporary accommodation as a result , I found out several weeks later he had a secret life and therefore saw it as the marriage over. Sadly hes new partner and him started stalking and watching our movement at the temporary accommodation and broke in several times and then I moved to safe accommodation hence the reason I took the non molestation order out. I had a marriage of abuse for ten years. The home that burnt down still had stuff in it which my husband and his partner have now broken into (the house is solely mine). The non molestation was not in force when they broke in the first time but was the second time. Sadly when i phoned the police the non molestation could not be found on the register so my husband and his partner were not arrested. The order is now on the system - there was an error apparently. I was told by the police that if it had been on the register last saturday when he broke in they would have been arrested. My husband is contesting the order and we have our hearing tomorrow - I have notified the courts of the break in - is this an arrestable offience?
JA: What happened? Was there an arrest for violating the protective order?
Customer: No because the police could not find it on the register. There was an error with the Court.
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: No

Hello, my name is Marcus.

It would depend on the exact terms of the NMO.

If it clear that your husband breached the terms of the NMO then it would be a criminal offence and as such the police should deal with the matter.

The fact the police did not have a copy of the NMO does not take away from any breach - it is a ridiculous of the police to suggest otherwise.

You should therefore speak further to the police - they should deal with the matter. As I say it is ridiculous to suggest they cannot act on a complaint by you as they did not have a copy of the NMO. The fact remains the order WAS in place regardless.

The breach will also make it very difficult for him to oppose the NMO continuing.

Thank you.

Customer: replied 11 days ago.
8, The respondent must not go to, enter or attempt to enter the applicants home or any property where the respondent knows or believes the applicant to be living and must not go within 100 metres of it.
This is the what the police believe he has breached,

That is an absolute breach as notwithstanding you were not living due to the fire it was still your home.

He will try and argue that you were not in occupation but it still remained your home. In the alternative as you are the legal owner of the property - he may have a beneficial interest in the property if if was a family home - he could have committed an offence by entering particularly if he caused damage in doing so.

Certainly when the NMO is reviewed tomorrow it will go against him.

What court is dealing with the matter.

Thank you.

MARCUS Malin and 4 other Family Law Specialists are ready to help you
Customer: replied 11 days ago.
Basingstoke County Court
Customer: replied 11 days ago.
I Have not heard anything yet?


I am sorry for the delay in responding but I have been offline following your last message.

Have you had a call from any colleague of mine.

If not I could call you first thing in the morning if you would like a call.

Basingstoke is my local court - what time is your hearing?

There are a number of NMO hearings listed tomorrow before the 2 DJ's who are sitting there tomorrow.

Thank you.

Customer: replied 11 days ago.
His solicitor has suggested an Undertaking - I’m assuming based on your earlier comments that I should not accept this?
As it has been a week they could still arrest him?
Customer: replied 11 days ago.
My hearing is 10am
Customer: replied 11 days ago.
no I haven’t received a call
Customer: replied 11 days ago.
Customer: replied 11 days ago.
Are you still there?

Yes - still online.

Will respond re Undertaking

Customer: replied 11 days ago.
As in no to an undertaking
Customer: replied 11 days ago.
the arrest


Firstly yes the police can deal with the breach.

Undertakings are usual unless there has been actual violence.

Personally I prefer undertakings as opposed orders due to enforcement.

As you know you cannot have a power of arrest on a NMO. If there is a breach you make a complaint to the police and it is hit and miss at to how the police deal with the matter - as you have discovered.

If the police do arrest and charge him with breach of a NMO the matter is dealt with by the Magistrates Court and unless it is a very serious breach often result in a fine.

If however he breaches an undertaking you apply to the court him to show cause why he should not be sent to prison.

I would much prefer him to have to go before a judge at the Family Court to face any allegation of breach rather than the Magistrates Court.

Of course it would be for you to make the application as opposed the police / CPS dealing with it if it was a breach of an order but as I say a judge is likely to be tougher than a Magistrate.

So there are advantages to an undertaking.

Also if a criminal conviction for breach of a NMO impacts on his employment it could then impact on financial support you receive or should receive if he loses his job.

Thank you.



Your matter is before DJ Glen.

It is listed for just 30 minutes and the judge has a busy day looking at his list.

If you cannot agree then the matter will be listed for a Final Hearing on another day.

Tomorrow is just for directions to see if an agreement can be reached.

If the matter is adjourned for a Final Hearing then the NMO will remain in place until any FH.

In honesty though rarely are matters not agreed - he will find it difficult to oppose a NMO being made in light of the breach.

So really it is just a case of your preference being an order or undertaking - with the significance being enforcement as I set out above.

Thank you.

Customer: replied 11 days ago.
Ok think that makes sense to me.
So, sadly my husband and his new partner could potentially get away with their behaviour?
Thank you

Potentially - but still worth pursuing with the police as the NMO was in force when they attended the 2nd time.

Either way it is important you have protection going forward and that is what you will achieve tomorrow.

Thank you.

Customer: replied 11 days ago.
Thank you

You are most welcome.

Customer: replied 10 days ago.
Hi, I had the Hearing today. Undertaking issued. The respondent didn’t have a defence. The judge made no mention of new findings so I’m assuming he didn’t think important and have no protection with regards ***** ***** that burnt down. It’s a joke.

Thank you for letting me know how it went.

You can still pursue the breach as the order was effective at that time - so it is worth pursuing

Customer: replied 10 days ago.
But I’m pretty certain the judge said that the burnt down home was not included
Customer: replied 10 days ago.
Is there anyway I could check that?
Customer: replied 10 days ago.
Are you available to speak ?


Will be available to speak tomorrow say after 11am - if good with you.

Thank you.


Customer: replied 10 days ago.
that’s fine - thank you

Great - speak tomorrow

Free now. Are you able to request a call.

Customer: replied 9 days ago.
Customer: replied 9 days ago.
I thought I had
Customer: replied 9 days ago.
It states I have

It is saying another expert called you - did they.

Customer: replied 9 days ago.
Customer: replied 9 days ago.
I was expecting a call after 11 today
Customer: replied 9 days ago.
From yourself

I need to get customer services to offer you a call so I get your contact details.

Customer: replied 9 days ago.
Ok - so you know how long as I have another appointment shortly

What is your number

Customer: replied 9 days ago.