The Right Kind of Divorce

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TheRightKindofDivorce.com is an idea thought of and developed by Anne Dick of Family Law Matters and Shona Templeton of MTM Family Law solicitors, all based in Glasgow, Scotland.

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Protective Remedies

If you are a victim of domestic abuse, there are various orders the court can be asked to grant to protect you. The type of order will depend on whether you are married, in a civil partnership or cohabiting, and on the type of abuse. The fact that no-one has witnessed the worst of your partner’s behaviour first hand will not automatically stop you getting some protection but will be necessary to get some form of backup. That could be evidence about some aspects of behaviour and perhaps a medical report.

Interdict

This is an order prohibiting a person from behaving in such a way as to cause you fear, alarm or distress. This can include threatening someone, or using violence towards them, whether physical or verbal. It can apply to married couples, civil partners or cohabitants, whether opposite or same-sex, although the legislation used will differ depending on your circumstances.

Once the interdict has been granted, a power of arrest can be attached to it, which will mean that the abuser can be arrested without a warrant. The test for granting a power of arrest is whether it is necessary to protect you from a risk of abuse in breach of the interdict. Where a power of arrest is attached to a domestic abuse interdict granted after July 2011, a breach of it has criminal penalties.

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Non-harassment order

This is designed to deal with behaviour which is distressing and upsetting, but not necessarily inderdictable. This would cover, for example, following someone, phoning or texting them repeatedly for no good reason, loitering outside your house or even sending you flowers. Harassment is open to wide interpretation. Breach of a non-harassment order carries with it criminal penalties.

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Exclusion order

This is an order excluding the abuser from the home. Usually it is asked for along with an interdict. Spouses and civil partners have occupancy rights (meaning, the right to live in the home) by virtue of their marriage or civil partnership. Cohabitants can also apply for an exclusion order, provided they can establish occupancy rights. The test for the grant of occupancy rights is whether the couple were living together as husband and wife.

An exclusion order suspends these occupancy rights. If the other person is still in the house, an exclusion order is authority for their removal. The order will be granted where the court is satisfied that the order is necessary for your protection or the protection of any child of the family. There must be harm or likely injury to the your health or a child of the family. It can be quite difficult to obtain an exclusion order, as it is so extreme in its effect. Supporting evidence such as reports from the police, social workers and GPs is often a decisive factor.

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