Why foreigners get caught out
Couples often believe that if both agree, the order no longer applies. It does, until a judge lifts it. A message, a visit or living together again can lead to an arrest and a new conviction, and can also cause a suspended sentence to be revoked. The right course is to ask the court to change the order.
The offence of breach
General rule (art. 468.1)
Breaching a sentence, a security measure or a precautionary measure is punished with prison of six months to one year if the person was in custody, and with a fine of twelve to twenty-four months otherwise.
Restraining orders protecting family members (art. 468.2)
When the order protects a partner, ex-partner or family member, the penalty is always prison of six months to one year. This covers bans on approaching, communicating or residing in certain places.
What counts as a breach
- Approaching the protected person within the prohibited distance.
- Going to their home, workplace or other places named in the order.
- Calling, messaging or contacting them through social media or third parties, if communication is banned.
- Removing or tampering with an electronic tracking device.
Why the partner's consent does not help
The Supreme Court has held that the consent of the protected person does not exclude the offence, because the order is imposed by the court in the public interest. The person bound by the order is the one who commits the offence, not the person protected.
How to change or lift an order
If the couple has reconciled or circumstances have changed, the person bound by the order can ask the court, through a lawyer, to modify or lift it. The judge will hear the protected person and the prosecutor. When the order is part of a final sentence, it is harder to change.
How breach cases are defended
The defence examines whether the person was properly notified of the order, whether the contact was accidental, whether the distance was really breached and whether the evidence is reliable. Many cases go to a fast-track trial.
A practical example
A German resident of Mallorca under a restraining order met his former partner by chance at a supermarket in Palma and left immediately, but she reported the encounter. We obtained the store's CCTV showing he left within seconds of seeing her. The judge found no intentional breach and acquitted him. Read domestic violence charges. More information on the firm's main website: gender violence (in Spanish).
Before you sign or say anything, call a lawyer
In a Spanish criminal case, what happens in the first hours shapes everything else. Call or WhatsApp us and an English-speaking criminal lawyer will tell you, in confidence, what to do next.
Questions about restraining orders in Spain
Is it a crime to see my partner if she agrees?
Yes, if a restraining order is in force. Her consent does not exclude the offence.
Can a text message breach a restraining order?
Yes, if the order prohibits communication.
What is the penalty for breaching a restraining order?
Prison of six months to one year when the order protects a partner or family member.
How can a restraining order be lifted?
Only by the judge, at the request of the parties through a lawyer.