By virtue of the Matrimonial Homes (Family Protection) (Scotland) Act 1981, victims of domestic abuse who are spouses, civil partners and cohabitants can, in certain circumstances, apply to the court to exclude their abusive partner from the family home. If granted, such an order protects the applicant by suspending the occupancy rights of the other party, prohibiting them from entering the home.
Occupancy Rights
An application for an exclusion order can be requested by those with occupancy rights. In Scotland, you will have automatic occupancy rights in a property if the following circumstances apply:
• You are a tenant or a joint tenant;
• You are married or in a civil partnership with the tenant;
• You own you home in your sole name or joint names;
• You are married or in a civil partnership with the homeowner.
If none of the above living situations apply and you are cohabiting with your partner and are not named on the title deed or tenancy, the law stretches to accommodate you. You can still apply for occupancy rights to the court if you have been living in the home of your partner. The court can also transfer the tenancy into your name. The difference is that an application to the court will be required as these rights are not automatic.
When will an exclusion order be granted?
When considering your application, the court will be minded to grant an order where it is necessary for the protection of the applicant or any child of the parties from "harm due to the conduct of the other". Such harm need not be physical and will recognise abuse which would be injurious to the mental health of the applicant or the child. The court will require evidence of the abuse, often in the form of affidavit evidence (sworn statements) or medical records.
The exclusion order must be "just and reasonable" and in determining whether it is, the court will assess the following factors before making a decision: -
• The conduct of the parties towards each other and in general;
• The needs and financial resources of each party and any child of the family;
• The extent to which the home or items in the home are used by either party in connection with their business, trade or profession;
• Whether the entitled spouse has offered to make alternative suitable accommodation available to the non-entitled spouse; and
• Whether there is a requirement for the defender to live in the house to carry out employment duties or work a farm.
Ancillary Orders – a further layer of protection
In granting the exclusion order, the court may 'layer up' the exclusion order by attaching ancillary orders. This is to ensure that the protection afforded by the law is fully encompassing. This may include: -
• A warrant of ejection, which enables the non-applicant to be evicted from the family home;
• A matrimonial interdict, preventing the non-applicant from entering the family home without the express permission of the applicant;
• An interdict preventing the non-applicant party from removing furniture and plenishings in the family home, without the written consent of the applicant or by a court order.
A further, extra layer of protection
If the court finds that it is just and reasonable to do so, the court can also grant an interdict to prevent the non-applicant spouse from entering or remaining in a specified area in the vicinity of the family home or any property occupied by the applicant.
Domestic Abuse (Protection) (Scotland) Act 2021
On 5th May 2021, the Domestic Abuse (Protection) (Scotland) Act 2021, received royal assent though its provisions have not yet been brought into force.
The 2021 Act will introduce two forms of protection: Domestic Abuse Protection Notices (DAPNs) and Domestic Abuse Protection Orders (DAPOs). It will widen the access to justice for those victims whose resources are restricted to obtain an exclusion order.
Where a victim of domestic abuse makes a report to the Police, a senior officer can issue a DAPN which will impose certain requirements or prohibitions on the abusive partner. For instance, the abusive partner can be prevented from entering the victim's home or approaching / contacting the victim and any of the victim's children. Where a DAPN is imposed, the Police must timeously make an application to the court for a DAPO, and this has the same effect as a DAPN but further protective measures can be attached. DAPNs are an effective short-term and immediate protection from domestic abuse until a DAPO can be granted by the court. A DAPO can last for up to two months and where it is deemed necessary, the court can extend this period for a further month.
The 2021 Act can also protect the victim by enabling social landlords to terminate the abuser's tenancy or transfer their tenancy to the victim so that the victim can remain in the safety of the family home. This can be obtained irrespective of whether the abuser is the sole tenant. The sole object is to remove the abuser from the house with a focus on securing a sole tenancy with the victim.
The Act is a turning point for those victims whose limited resources have obstructed their access to justice and to protection against their abusive partner.
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