COURT ORDERS

INTERDICTS

NON HARASSMENT ORDER

MATRIMONIAL INTERDICTS

EXCLUSION ORDERS

APPLYING FOR A COURT ORDER

PROTECTION GIVEN BY COURT ORDER

CRIMINAL LAW

FURTHER INFORMATION

If the person you are married to or live with is someone who is violent or abusive to you, or if your relationship has already broken down because of domestic violence, there may be several options open to you to offer you protection. These options will be explored in the next section.

You may want to pursue more than one of these options at the same time or you may want to wait before taking action. For example, you could get advice and go to stay in safe refuge accommodation while you apply for a court order to put (and keep) your violent partner out of the family home. Or, if you do not want to leave the home, you could contact the police and at the same time apply for a court order to keep your violent partner away from the house.

If you experience domestic violence, what you can do will depend on your circumstances. The level of protection you receive may vary. It is important that you find out what options you have and how much protection each option offers, along with any limits on that protection. The best way to do this is to consult an experienced adviser or solicitor.

COURT ORDERS

Before you seek advice you may want to know that there are several court orders that can give you protection against domestic violence. Some of these can be granted on an emergency basis and a court can grant one or more order in one action. For example, you could apply to a court for an exclusion order on an emergency basis while at the same time obtaining a matrimonial interdict. If you consider applying for a court order you should get advice from a solicitor. Read on to find out what the different court orders are.

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INTERDICTS

An interdict is a court order which seeks to stop certain types of 'unlawful behaviour'. This behaviour can include acts which are abusive or threatening but which do not actually involve violence. Any person may apply to a court for an interdict for protection and it does not matter if you are married or unmarried, or in a gay or heterosexual relationship

NON HARASSMENT ORDER

A non-harassment order seeks to stop certain types of harassment where at least two incidents of harassment have occurred. This can include behaviour like threatening telephone calls or language which might not be enough to support a case for an interdict.

These orders are of use to people who are excluded from the protection of matrimonial interdicts, like gay couples or non-married couples not living as man and wife

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MATRIMONIAL INTERDICTS

A matrimonial interdict seeks to stop certain forms of violent and abusive behaviour. It can also prohibit your partner from being in the area of the family home once he or she has been put out.

A court will only grant a matrimonial interdict to a married person or to someone who lives with a partner as man and wife, excluding lesbian and gay couples.

A matrimonial interdict can have 'powers of arrest' attached to it. This is very important. It means that if a violent partner ignores the terms of the matrimonial interdict he or she can be arrested. This is covered in more detail below.

If you experience domestic violence you could apply for an exclusion order and a matrimonial interdict in one action. Together, these orders seek to put out -and keep out - a violent or abusive partner from the family home.

*Note, at the moment*
Powers of arrest only apply in matrimonial interdicts whereby a couple are still legally married. It does not apply in situations where a couple are divorced or have/shared a partnership.

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EXCLUSION ORDERS

An exclusion order suspends the right of your partner to live in the family home because he or she is threatening or abusive to you or your children. This order puts your partner out of the house because he or she poses a threat to you or your children. The court can grant this order on an emergency basis without first hearing any evidence.

A court will only grant an exclusion order to a married person or to someone who lives with a partner as if they were man and wife. This means that lesbians and gay men are not able to apply to a court for an exclusion order.

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APPLYING FOR A COURT ORDER

If you experience domestic violence, you mayor may not be able to apply for the court orders listed. Any person can apply to a court for an interdict to protect themselves against domestic violence. It does not matter if you are married or unmarried or in a gay or heterosexual relationship. The same is true for non-harassment orders which can be granted to any person.

On the other hand, exclusion orders and matrimonial interdicts are only available to people who are married or who live together as if they were man and wife. This means that people in gay relationships cannot apply for these protection orders.

It is very important to establish exactly how much it will cost to proceed with a court action before you decide to apply for any kind of protection order. If your income is above Income Support levels you will be required to make a contribution to your lawyer's fees and any court expenses. This contribution could be high, although it is possible to make the payment over ten months. If your income is at Income Support levels you will qualify for full civil legal aid and you will not be expected to make any contribution

If you consider applying for a court order you should contact a local solicitor or law centre for further advice.

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PROTECTION GIVEN BY COURT ORDER

If you experience domestic violence, the possible level of protection depends upon what court orders are available to you. There is a significant difference between an interdict and a matrimonial interdict. If you are granted an interdict by a court and your partner continues to be violent or abusive it is up to you to bring this to the attention of the court. This can be a heavy burden if your partner is threatening and violent. On the other hand, if you are granted a matrimonial interdict with powers of arrest, and the local police have been informed of this, and your partner continues to be violent or abusive, the police can arrest and detain him or her until the next court day and for a further 48 hours after that.

If you are excluded from the protection offered by matrimonial interdicts with powers of arrest, you may consider a non-harassment order. This is an option open to all people, whether married or unmarried, gay or heterosexual. If your partner ignores this order and continues to harass you, it is a criminal offence and the police can take action

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CRIMINAL LAW

If you experience domestic violence, the criminal law may give you immediate protection. In all relationships, whether heterosexual or gay, the police and courts should provide protection against acts of violence. If you are a woman, and you are interviewed about a violent crime against you, you can ask to be interviewed by a female police officer.

There can be difficulties in relying on the criminal law for protection against domestic violence. For example, there is a focus in criminal law on actual or threatened physical assault which sometimes seems to exclude aggressive acts which you may consider abusive or threatening. Also, the evidence needed to prove that a criminal offence took place could involve you in giving evidence in court, never an easy process. Finally, even if you contact the police and give evidence in court against the violent person, he or she may not be found guilty or may be found guilty but not put in jail.

If you have contacted the police for protection against domestic violence in the past, it is worth contacting the Criminal Injuries Compensation Authority (CICA) for information on making an application for compensation for any injuries you sustained. A contact address for the CICA is listed at the end of this guide

*The above information is from Home Point (Scottish Homes) and has been copied with kind permission from their brochure Relationship Breakdowns and Housing Rights.

Further information and brochure obtainable from

Home Point, Scottish Homes,

Thistle House,
91 Haymarket Terrace,
Edinburgh,
EH12 5HETel 0131 3130044

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