Can you see your partner under a restraining order if she consents?

Seeing your partner while under a restraining order when she consents is more common than it seems: a reconciliation, a meeting to talk about the children, an invitation round to the house. Many people believe that if both of them agree, there is no problem. That is not the case, and it is worth understanding why before an apparently calm meeting ends up in court.

What the Supreme Court says

For years there were conflicting judgments. Some held that if the victim accepted living together, the reason for the measure disappeared and there was no offence (as, for example, in STS 1156/2005 of 26 September). Others always convicted the person subject to the ban.

The Criminal Chamber (Sala Segunda) of the Supreme Court settled the question in the non-jurisdictional plenary agreement of 25 November 2008 on the interpretation of article 468 of the Criminal Code: “the woman’s consent does not rule out criminal liability for the purposes of article 468 of the Criminal Code”. It is not a judgment but an agreement to unify criteria, which the Chamber has applied in its decisions ever since.

Judgments applying it include STS 39/2009 of 29 January and STS 667/2019 of 14 January 2020. The latter added that the victim’s consent cannot be a mitigating factor either, because compliance with a sentence or measure imposed by a court “cannot be left to the discretion of the convicted person or the victim, not even in cases where it is aimed at protecting her”.

Why consent does not count

The Supreme Court’s reasoning rests on two ideas:

• The interest protected is compliance with court decisions. Breach is an offence against the Administration of Justice. The order is made by a judge, and only a judge can lift it.
• The victim’s protection cannot be waived. Measures are ordered after assessing a risk, and the Court has held that they cannot be subject to changes in the relationship without judicial oversight.

This approach has nuances. The Chamber itself has said that the agreement should not be applied in isolation from the circumstances of the case (STS 61/2010 of 28 January) and has accepted, on an exceptional basis, that there may be no liability where the approach results from a clear initiative of the protected person that is not easily avoided, and the accused merely remains passive (STS 803/2015 of 9 December). These are specific situations that must be proven; the general rule is still conviction.

The legal risks for him

The person subject to the ban is exposed to:

• A conviction for breach with a prison sentence of six months to one year, with no possibility of replacing it with a fine within the offence itself (art. 468.2 CP).
• Remand in custody or tougher measures: if an interim measure is breached, article 544 bis of the Criminal Procedure Act (LECrim) requires the court to call a hearing to consider remand in custody or another more restrictive measure.
• Immediate arrest if the police confirm the meeting, for example after a call from a neighbour or an alert from the electronic monitoring device. An agreed meeting can turn into a complaint if an argument breaks out.
• Consequences in other proceedings, such as family proceedings or a future application to lift the measure, because the breach may be treated as a risk factor.

If you have already been accused of a breach with consent, our area of defence of men accused of domestic or gender violence examines how the meeting came about, who took the initiative and what can be proven. There is also a general explanation of the penalties for breach and how it is defended.

And the victim? Does she commit an offence?

A restraining order is addressed to the person on whom it is imposed, not to the protected person. That is why the victim cannot be the perpetrator of the offence of breach: she has no ban to breach.

It is more debatable whether she could be liable as an instigator or accomplice when she is the one who proposes the meeting. Some legal scholars have argued so, but the Attorney General’s Office, in its Guide to action with a gender perspective in the investigation and prosecution of gender violence offences (2020), maintains that the woman’s involvement “should be taken into account to modulate the perpetrator’s liability, not as criminal liability of the protected woman”. Many scholars share this view, arguing that punishing the person the measure protects contradicts its very purpose.

That does not mean the meeting has no consequences for her: she may be called to give evidence as a witness at her partner’s trial, and a situation she thought was under control can become dangerous without the protection of the order. If you are the victim and have doubts about the relationship or your safety, in our area of representing women who are victims of gender violence we listen without judging you. You can message us on WhatsApp at 607 449 491 (24 hours), in complete confidence.

What to do if you want to get back together

There is a proper, lawful route: ask the court to lift or vary the measure before you see each other.

1. Check whether the order is an interim measure (for example, as part of a protection order) or a sentence imposed in a judgment. What can be requested depends on this.
2. If it is an interim measure, the victim can appear at court or file a written application explaining that she does not wish it to continue. The suspect’s defence can also apply.
3. The judge will hear the prosecutor and assess the risk. The judge may lift it, vary it (for example, allowing communication but not living together) or keep it in place.
4. Until there is a decision lifting it, do not see each other or communicate if that is prohibited.
5. If it is a final sentence, the only option is to apply for a pardon (indulto), an exceptional route with an uncertain outcome.

We explain this step by step in how to lift a restraining order. And to understand the scope of each type of ban, see our page on restraining orders in gender violence cases.

In Alicante

The application to lift the order is made to the body handling the proceedings. In gender violence cases, since Organic Act 1/2025, that is the Gender Violence Section of the Court of First Instance (Sección de Violencia sobre la Mujer del Tribunal de Instancia), which in the Alicante judicial district is located at Avenida Aguilera, 53 (03007 Alicante), according to the Generalitat Valenciana’s online portal. The same Section investigates breaches where the protected person is or was the accused’s partner (art. 89.5 g) of the Judiciary Act, Ley Orgánica del Poder Judicial).

At our firm we act for both sides in separate cases: for the woman who wants to understand what applying to lift the order involves, and for the man accused of breaching it. Celeste Pérez Bleda, member no. 7301 of the Alicante Bar Association (ICALI), has more than 20 years’ experience in criminal law.

Frequently asked questions

If she invites me round, is it an offence to go when there is a restraining order?

Yes. Even if she is the one inviting you, if the order is still in force you commit the offence of breach, punishable by six months to one year in prison. The Supreme Court has held since its plenary agreement of 25 November 2008 that the woman’s consent does not rule out the offence. Only in exceptional cases, with a clear initiative on her part and a passive attitude on yours, has liability been ruled out.

Can the victim be convicted of breaching the order?

Not as the perpetrator, because the ban is only imposed on the other person. There has been debate about her possible involvement as an instigator or accomplice, but the Attorney General’s Office maintains in its 2020 guide that her involvement should be taken into account to modulate the perpetrator’s liability, not to punish her.

Can we talk on WhatsApp if she wants to?

If the order includes a ban on communication, no. Article 48.3 of the Criminal Code prohibits contact by any means, including computer or electronic means, and her consent does not change that. If the order only bans approaching, communication does not breach it, but it is wise to review the court order or judgment with your lawyer before taking any step.

How can we legally get back together?

By asking the court to lift the measure before you see each other. If it is an interim measure, the victim can apply in writing or at a hearing, and the judge will decide after hearing the prosecutor and assessing the risk. If it is a sentence imposed in a final judgment, it cannot be lifted at the parties’ request and the only option is to apply for a pardon.

If you are in this situation, the most prudent course is to speak to a lawyer before you meet. Our team will assist you in English. We explain what it means in your case, whichever side you are on, on our page on breach of a restraining order or on WhatsApp at 607 449 491, available 24 hours a day.