A Matrimonial Interdict is defined as an interdict which restrains or prohibits conduct from one spouse towards the other or child of the family or; prohibits a spouse from entering or remaining in a matrimonial home, or any other residence occupied by the applicants spouse or any place of work of the applicants spouse; or any school attended by a child in the permanent or temporary care of the applicant’s spouse.
Where the opponent is an entitled spouse or has occupancy rights a Matrimonial Interdict cannot prohibit them from entering or remaining in the home unless ancillary to an Exclusion Order. This can be a very complex area of law and you should seek specialist legal advice as soon as possible. Call our family law solicitors on 0141 429 8166 or complete our contact form.
This Act enables Powers of Arrest to be attached to any type of Interdict. Abuse is broadly defined as including any “violence, harassment, threatening conduct, and any other conduct giving rise, or likely to give rise to physical or mental injury, fear, alarm or distress”. “Conduct” is defined as including speech and presence in a specified place or area. The provisions of the Act can be used not only to cover incidents of domestic abuse where there is a familiar relationship but also is seeking to protective orders against other types of persons such as ex-partners, neighbours etc.
Where the Defender breaches the terms of an Interdict/Interim Interdict, separate proceedings can be raised for breach of Interdict. These are separate to the original action and are raised by way of a Summary Application. They must be raised with the agreement of the Procurator Fiscal. The application will ordain the Defender to appear personally before the court to state his or her position and crave that if alleged breach is admitted or proved that the Defender will be subject to a fine, period of imprisonment or both. The onus is on the Pursuer to prove the breach and the standard of proof required to prove the breaches proved beyond reasonable doubt. It is therefore essential that the terms of the Interdict sought are specific enough to provide clarity on what behaviour is prohibited. Although proof beyond reasonable doubt is required, corroboration is not necessary and the evidence of one credible witness is enough to prove breach.
The Protection from Harassment Act 1997. In proceedings for interdict raised after 20th July 2011, when a determination has been made that the Interdict is a Domestic Abuse Interdict, there is no requirement to demonstrate that there has been a course of conduct amounting to harassment and one incident will suffice to apply for and obtain a Non-Harassment Order. For all other types of cases the requirement is to show a course of conduct by the opponent. Such an order cannot be granted without the other party having an opportunity to be heard or represented and it is a defence to show that the behaviour was either authorised by any rule of law, pursued for the purposes of preventing or detecting crime, or reasonable in the particular circumstances of the case.
If the Defender breaches a Non-Harassment Order, he/she will be guilty of a criminal offence and can be arrested without warrant. If convicted of a breach of Non-Harassment Order a Defender can be imprisoned, fined or both. The person seeking Non-Harassment Order is also entitled to seek damages from the Defender. Any damages claimed must be raised within a period of three years after the date on which the alleged harassment ceased or the date when the Pursuer became or should have reasonably been expected to become aware that the Defender was responsible for the harassment.
This is a court order prohibiting someone from carrying out or continuing to carry out wrongful acts which they have already carried out or may reasonably anticipated to carry out. It covers a wide variety of behaviours and most cases it will be determined on their own facts and circumstances. Powers of Arrest can be attached to Common Law Interdicts and if Powers of Arrest are being sought, Affidavits must be lodged to support the granting of them.
As you will have gathered, the law in this area is not straightforward and there are often a variety of available options. We offer urgent appointments for those seeking a remedy against abuse and can use our expertise and experience in this field to accelerate the raising of proceedings to bring you the necessary protection at the earliest possible stage. Call us now on 0141 429 8166 or complete our online contact form.
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