Without Notice Applications

What a Without Notice Application Is

An application for a non-molestation order or an occupation order is normally served on the respondent at least two days before the hearing. A without notice application asks the court to make the order first and hear the respondent afterwards. GOV.UK calls it a without notice or ex parte application: you do not have to tell the person you want protection from that you are applying.

The power is in section 45 of the Family Law Act 1996: the court may act without notice where it considers that just and convenient, and must then give the respondent an opportunity to make representations at a full hearing as soon as just and convenient. The order holds the position until that return hearing.

Urgency is about speed; notice is about whether the other person is heard first. Our emergency injunctions page covers the urgent procedure; this page covers the legal test, the statement, the order and the respondent's right to challenge it. A forced marriage protection order can also be made without notice under section 63D on closely similar factors. In immediate danger call 999; the National Domestic Abuse Helpline is free on 0808 2000 247.

The Test the Court Applies Under Section 45

Section 45(2) directs the court to have regard to all the circumstances, including:

• any risk of significant harm to you or a relevant child, attributable to the respondent's conduct, if the order is not made immediately;
• whether you are likely to be deterred or prevented from pursuing the application if an order is not made immediately;
• whether the respondent appears to know about the proceedings but is deliberately evading service, so that the delay of substituted service would seriously prejudice you or a relevant child.

The section sets no test of exceptionality, but the courts have supplied one. In R v R (Family Court: Procedural Fairness) [2014] EWFC 48 Peter Jackson J said the default question for a judge faced with a without notice application should always be why, not why not; such orders can only be made in exceptional circumstances with proper consideration for the absent party's rights, and exclusion areas and bans on direct communication need specific evidence. In DS v AC [2023] EWFC 46 Lieven J added that the statement must expressly deal with why the case is exceptional and what the significant risk is; on the facts, three weeks without contact made a without notice order wholly inappropriate.

The President of the Family Division's Guidance 2026 on non-molestation orders, effective from 12 January 2026, adopts both cases and requires a modern understanding of domestic abuse, including coercive control and economic abuse: acting without notice may be right where the evidence suggests a pattern of coercive control and you could be coerced into withdrawing, or where the abuse has had such an impact that you would be deterred from going on if the respondent were told. Without notice orders are the exception, not the rule, though exceptional does not mean rare.

The Statement and the Duty of Candour

Rule 10.2 of the Family Procedure Rules requires a witness statement in support, and where the application is made without notice it must state the reasons why notice has not been given. The Family Justice Council's practitioner guidance gives that justification its own section and requires specifics, not generalised wording: what this respondent has said or done that makes warning them dangerous, or why you could not go on if they were told.

The rest of the statement carries the application: a brief chronological history of the abuse and its patterns, why each order is necessary, and for each incident the date, what happened, who was present, the impact on you and any children, and any corroboration. It should say why other protection, such as bail conditions, would not be adequate. It carries a statement of truth, and GOV.UK warns that contempt proceedings may follow a false statement.

Applying without notice also engages the duty of candour: the court must have all the material facts, including those that do not help you, such as earlier proceedings, your own conduct, contact you initiated or a gap since the last incident. An order obtained on an incomplete account is open to challenge.

How a Without Notice Application Works

The court has three options on the papers, set out on our emergency injunction procedure page. This is how we take an application through.

1. We take instructions and advise whether the facts meet the section 45 test, or whether an on notice application is the sounder route.
2. We prepare form FL401, your statement, a draft order, form C8 to keep your address confidential and form D89 for bailiff service. There is no court fee; other court fees are listed on GOV.UK.
3. If satisfied on the papers, the judge may make the order in the terms sought or as the judge considers necessary and proportionate, with a return date fixed and stated in it, or list a short hearing for you to attend.
4. The order must say it was made in the respondent's absence on your evidence alone, identify that evidence, record that no findings of fact have been made, and spell out the respondent's right to apply, without waiting for the return date, to set it aside or vary it; liberty to apply is not enough. A non-molestation order must also carry a fixed end date.
5. Service is personal, by us, the court bailiff or a process server, never by you. Rule 10.6 requires the order to be served as soon as reasonably practicable with the application and your statement, and the guidance treats permission for any other method as a last resort.
6. Rule 10.10 requires a copy of a non-molestation order to be delivered to the police station for your address, by us or by the court. Until the respondent is aware of the order, section 42A(2) means breaking it is not yet a criminal offence, so prompt service is part of the protection.

The Return Hearing and Setting the Order Aside

The guidance requires the return date to be fixed and stated in the order, no more than 28 days after it; permission to ask for a hearing is not an adequate substitute. A form served with the order asks the respondent to say, five working days before the hearing, whether they agree to the order continuing, do not oppose it with no findings of fact made, or oppose it. At the hearing the court may explore continuing the order with no findings of fact, or an undertaking, which it should not accept where the respondent appears to have used or threatened violence against you or a relevant child and an order is needed so that a breach can be prosecuted under section 42A.

A respondent is barred from cross-examining you in person where an on notice injunction is in force (section 31S of the Matrimonial and Family Proceedings Act 1984), where specified evidence of domestic abuse is before the court (section 31T), or where they have an unspent conviction or caution, or a charge, for a specified offence against you (section 31R); in other cases the court may prohibit it under section 31U. A without notice order is not on notice until the respondent has had a hearing at which to challenge it, so we ask for participation directions before a first return hearing.

A respondent need not wait for the return date. Rule 18.10 of the Family Procedure Rules, Part 18 requires the order to state the right to apply to set aside or vary it; rule 18.11 requires that application within 7 days beginning with the date of service, and the guidance says the court must list it within days. It has force where the section 45 test was not met, where the applicant fell short of the duty of candour, or where the terms outrun the evidence, such as an exclusion zone or a term keeping the respondent from home or work.

Until set aside or varied the order must be obeyed in full: doing anything a non-molestation order forbids without reasonable excuse is an offence under section 42A, punishable on indictment by up to five years' imprisonment; see breach of a non-molestation order. Your response can be read across into any case about your children, so take advice before choosing between contesting, an undertaking and an order with no findings; see domestic abuse and child arrangements.

When Legal Advice Is Especially Important

• You are unsure whether your facts justify proceeding without notice: a refusal costs time, and an order set aside for want of candour damages your credibility.
• You want the respondent kept out of the home, where a without notice order is treated as exceptional and the balance of harm test under section 33 also applies.
• You have been served with an order made in your absence and the 7 day period under rule 18.11 is running.
• Children proceedings are running or likely, because the findings, or their absence, can follow you into them.
• The respondent is abroad, has no known address or is avoiding service.

How RakLAW Solicitors Can Help

We are at 42 Shad Thames in Southwark, a short walk from Tower Bridge. Founded by solicitor Rakesh Prajapati, the firm offers a free 15-minute consultation on 0203 345 2000. We are privately funded and do not offer legal aid; if you need a legal aid provider we will say so at the first call.

We tell applicants honestly whether the section 45 test is met, and respondents where an order is open to challenge. See our domestic abuse and injunctions service, our family law fees page, or book an appointment.