Protection from abusive partners
Domestic abuse is a widespread problem and takes many forms. It may be verbal, psychological, emotional or physical. It occurs when one person in a relationship tries to dominate and control the other person. If you are the victim of an abusive relationship and decide to take action then you may choose to:
- leave your shared residence temporarily;
- leave your shared residence permanently;
- stay in your shared residence and get the abusive partner to leave, or
- take legal action.
If you decide to take legal action it will be helpful for you to know a background of the legal provisions in Scotland that provide protection from abusive partners.
Taking legal action
An interdict is a court order that bans your abuser from threatening or assaulting you. An interdict can be obtained to prohibit your abuser from coming near your home, work or even your child’s school.
There are different ways to apply for an interdict. These include the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and the Protection from Abuse Act 2001.
In an emergency you can apply to the court for an interim interdict which is a temporary order. Your solicitor should be able to get this for you within 24 to 48 hours.
How is an application made for an interdict?
A solicitor applies to the Court for an interdict on your behalf. Your partner/ex-partner will be informed of your interdict application. If the interdict is granted by the Court, Sheriff Officers will go to your partner/ex-partner and serve the interdict (give him the papers). The interdict only becomes effective when he receives the papers. The police should be notified by your solicitor at this stage that an interdict has been granted and when it starts.
Powers of arrest
Under the Protection from Abuse Act 2001, you can apply for a power of arrest to be attached to an interdict. This allows the police to arrest your partner/ex-partner without a warrant if he breaks the terms of the interdict.
If your partner/ ex-partner does break the terms of the interdict then you should report this immediately. If the interdict does not contain a power of arrest then you should contact your solicitor to let them know what has happened. If the interdict does contain a power of arrest then you should contact the police in addition to your solicitor.
This is a Court order stating that your partner/ex-partner cannot continue certain behaviour such as following, or repeatedly texting and phoning you. A solicitor would make an application to the Court on your behalf. You must be able to show that, on at least two occasions, your partner/ex-partner behaved in such a way as to put you in a state of alarm or distress. If you already have an interdict from the court then you can obtain a non-harassment order to forbid the person from doing something not included in the interdict.
If your partner/ex-partner breaks a non-harassment order the police should be contacted immediately as this is a criminal offence. Your solicitor should also be contacted. Your partner may face a fine or prison sentence.
Section 127 of the Communications Act 2003 may be used to bring a prosecution where the stalking behaviour includes emails, texting or threats by telephone.
Contact with children
You have left an abusive relationship but your ex-partner may wish to maintain contact with your children. If he or she applies to the court for contact, you can ask the court to consider the need to protect your children from any abuse from them. The Court will also consider the impact of the background of abuse on you.
For further information on domestic abuse and interdicts in Scotland, please contact our family lawyers based in Glasgow on 0141 332 0915 or fill out our online enquiry form.