Matrimonial Violence and Interdicts

The breakdown of a relationship can often lead to violence. The law has made provision for interdicts and the exclusion from the family home of a violent spouse.

The threatening or assault of a spouse is a crime. Unfortunately, most acts of violence occur in private when the police cannot intervene. This does not mean that matrimonial violence should not be reported to the police, indeed the opposite is the case. The police cannot act unless violence or threats are reported to them. Police attitude to domestic violence has improved considerably in the last few years. Reports of violence are always treated seriously and the police are under a duty to investigate all complaints. If the police have sufficient evidence they will charge the offender. Where this occurs the protection of the criminal law can be extensive.

If a spouse is charged with assault he will normally be kept in police custody to appear before the courts the next day. If he pleads not guilty and requests bail the court will not normally allow him his freedom unless he promises to refrain from interfering with the assaulted person. Bail conditions can also be imposed to prevent his return to the matrimonial home. In the most serious of cases the court may remand the spouse to prison pending trial.

Occasionally, a person who has reported an assault by her partner to the police, may wish to withdraw the complaint. As a general rule this will not be allowed. The Crown take a serious view of assault and usually proceed with the prosecution. There is no right in Scotland to withdraw a complaint as it is entirely a matter for the procurator fiscal who is prosecuted. The crown are acting in the public interest and policy dictates that matrimonial violence is not to be tolerated.

When assaulted or threatened either by a partner or a stranger you should always therefore report the matter to the police.

The civil courts do however provide some protection to the victims of violence.

An interdict is a remedy designed to prevent the commission of a wrong or illegal act. It is available to both married and unmarried victims of violence. Unfortunately interdicts are often ineffective in protecting a person from violence. The reason for this is that a breach of interdict often results only in laborious and expensive breach of interdict proceeding's. There is no provision for quick relief to injured parties. Interdicts are often described as paper tigers - they are ineffective. The police are unable to act on an interdict and cannot arrest a violent spouse as a result of one. Married persons can however apply to the court for a power of arrest to be attached to the interdict.

This remedy is available to married people against the violent spouse. The power of arrest, when granted, is registered at the local police station. If the interdict is breached the police can take the violent spouse into custody. Thereafter the violent spouse is taken to court. The court can order his further detention for a maximum of forty eight hours. This remedy is often very effective at minimizing further violent conduct.

The court can make an order preventing the violent spouse from entering the matrimonial home. such orders can be granted where it is shown that they are necessary for the protection of the spouse or the children of the family.

All of the civil remedies mentioned can be obtained reasonably quickly by application by your Solicitor to the Sheriff Court. These orders normally remain in force until divorce has been granted. It is not possible to retain a power of arrest or an exclusion order after divorce although an interdict can be made permanent.

There is limited protection for unmarried partners. Application can be made to the court to allow you to occupy the family home even if you have no ownership rights in it. These orders are limited to six months in duration. Similarly, power of arrest and exclusion orders can be obtained but may be useless as they do not prevent the partner who owns the property from selling it.

In general, the civil law has proved inadequate in dealing with stalking and harassment from ex-partners and others. The Act was passed to enable the courts to jail offenders who persisted in harassment of others.

The Act states that:-

'every individual has aright to be free from harassment and accordingly, a person must not pursue a course of conduct which amounts to harassment of another...'

There must be two or more incidents of harassment.

Harassment includes 'speech' and 'causing the person alarm or distress.'

A breach of a harassment order can result in a fine or sentence of up to five years.

The order requires the person to refrain from the conduct complained of.

An order can be obtained from the Sheriff Court.

To date there have been few applications for harassment orders. It is not yet clear why this is. Similarly, it is unclear just how effective these orders will be.

Matrimonial interdicts give only limited protection to couples living together. This results in females being unable to enjoy the same protection from violent partners as married women. This is considered a serious flaw in the law and has been apparent for many years. Reform has however been slow. The Scottish Executive is now reviewing the situation and a white paper on this deficit is expected sometime in May 2000.