Being on the receiving end of frightening or aggressive behaviour, whether from a spouse, partner or somebody else, can be very frightening. The law offers protection. If you are in danger or scared for your own safety or that of your children at any time, you should call the police immediately. You should then consult a family law solicitor in order to explore the protections which may be available to you. The protections offered by the law in Scotland reflect society’s commitment to protect persons who experience domestic abuse, and aim to deal appropriately with the perpetrators. The most commonly used protections are outlined below.
One of the options if you are a victim of domestic abuse is to apply to the court for the protection of an interdict. Put simply, an interdict is an order to stop somebody doing something to you. An interdict should specify in detail the conduct which is prohibited. This can include verbally abusing you, threatening you, and coming to your house or other property. You do not have to be married to, in a civil partnership with, or living with the person you are seeking to interdict.
A solicitor specialising in family law can apply to the court on your behalf for an interdict. Your solicitor will set out your written case, which tells the court what you are asking for and the reasons why you are seeking protection.
Your solicitor may initially apply to a court for an “interim interdict”. This can be granted before the person abusing you knows about the action, and is for your early protection. Before making a final order the court would grant your partner an opportunity to put their side of the case should they wish.
An order for interdict on its own cannot prohibit your spouse or partner from the family home. If you are married or in a civil partnership, and you and your spouse or civil partner own or rent the family home together, you are both entitled to enter and occupy the home during any separation. Each spouse’s right to remain in the home continues throughout any separation unless a court decides that one person should be excluded from the family home. An exclusion order is available to suspend the right of a person to live in the family home.
An exclusion order may be granted if the court is satisfied that it is necessary for the other person’s physical or mental safety, or the physical or mental safety of a child living in the house. The test for an exclusion order is a high one and requires independent evidence of the risk of physical harm, or of the impact on mental heath. A report from a GP may be helpful in these situations.
As a spouse or civil partner you do not need to be living in the family home to apply for an exclusion order. You can apply, for example, while you are living with friends or family or in a refuge (this right however expires after you have not lived in the family home for two years).
You will have to be able to prove that your partner has acted in the way you say. This can be done in various ways, for example by a police report, letter from your doctor, or evidence from friends, family members or neighbours who have witnessed or heard incidents or injuries. If the court is persuaded that your partner’s harmful behaviour is likely to be repeated, it will grant the exclusion order if it deems it necessary for your protection and if the making of the order is just and reasonable. The length of time the exclusion order will last will depend on your personal circumstances. A solicitor will be able to advise you of this. If an exclusion order is not granted, you may still apply for an interdict.
Any other house occupied by the applicant spouse other than the family home, as well as their workplace or the school attended by a child in their care, can also be included in the exclusion order.
If you are living in your partner’s home but are not married or in a civil partnership, and wish to exclude a violent partner, there are additional steps you require to take. You must first apply for occupancy rights before seeking an exclusion order.
Power of arrest
The law allows for people who have suffered or who fear abuse to apply to the court for a power of arrest to be attached to an interdict or an exclusion order. This additional element means that if the person breaches the interdict or exclusion order they will be arrested by the police.
A power of arrest is usually attached to an order if the court is satisfied that the conduct is likely to continue unless a power of arrest is attached. Your solicitor will ensure the police are informed about the order.
The test for attaching a power of arrest is whether it is necessary to protect the applicant from a risk of abuse and breach of the order. A power of arrest can be granted for a maximum period of three years, although it is often granted for an initial period of one year. If the conduct continues during that period, an application can be made for the power of arrest to be extended.
If the perpetrator breaches an interdict or exclusion order while a power of arrest is attached, the police can arrest the perpetrator and detain them in custody until they are brought before a sheriff. If someone is arrested under a power of arrest, the procurator fiscal will decide whether criminal proceedings are to be brought. You can recall a power of arrest if it is no longer necessary for your protection from the risk of abuse or breach of order.
A family law solicitor will advise you of what remedies would best protect you, and suit your own particular situation. Actions can be raised on their own or as part of a divorce or other family action.
Once the application is sent to the court, it is likely an early hearing will be fixed. Your solicitor may ask the court at this first hearing for an interim order to be granted in the meantime for your protection before anything is sent to or served on the perpetrator of the abuse. After that your partner will have the opportunity to defend themselves should they wish. At that stage the court would hear evidence from you and your partner before deciding whether to grant the order. Your solicitor will guide you carefully through each step and attend with you at all court hearings. It may not be necessary for you to attend all hearings with your solicitor.
There are ongoing developments in this area of law and ways are being looked at to increase protection available in Scotland for persons who experience domestic abuse. The critical thing is to protect yourself and contact the police immediately if you are frightened or in danger. Then contact a family law solicitor, who will talk to you in confidence through the various protection options available to you.