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Exclusion orders and other protective orders

You may be able to apply for an exclusion order and other protective orders to keep your partner out of your home and to prevent them visiting your school or workplace, however, this depends on the legal status of your relationship and who owns or rents your home.

What is an exclusion order?

An exclusion order is a type of protective court order that suspends the right of a married person, civil partner or cohabitee to live in the family home. You can apply for an exclusion order if your spouse or partner has done or is threatening to do something that has harmed or would harm you or your children either physically or mentally. This will probably need to be more than one isolated incident that was out of character. It can be difficult to get an exclusion order and it will depend on your individual circumstances. Speak to a solicitor who specialises in family law for more advice. You can contact the Family Law Association or the Law Society of Scotland to find a family law solicitor in your area.

Who can apply for an exclusion order?

In order to apply for an exclusion order, you must:

  • be married, or
  • have registered a civil partnership, or
  • be living together as if you were married or as if you were civil partners, and
  • both have rights to occupy your home - these will depend on whether you rent or own your home.

You don't need to be living in the family home when you apply for an exclusion order. For example, you can apply while you are staying with friends and family or in a refuge.

If you live in tied accommodation provided by your partner's employer, you may not be able to get an exclusion order.

How do I apply?

To get an exclusion order, you need to apply to the sheriff court or Court of Session. Although you can make the application yourself, this is a difficult process, so it's best to get a solicitor to apply for you. No-one other than a lawyer can represent you, for example, you can't ask a Women's Aid worker to make the application for you.

How long does it take to get an exclusion order?

Once you have applied for an exclusion order, the earliest date you can get a court hearing will be three days later, although in most courts this is likely to be a week.

You may need to move to somewhere safe (for example, a refuge) during the time when your partner is told that you are applying for an exclusion order and the date of the court hearing.

Will I have to go to court?

No. The court can grant an interim exclusion order without hearing evidence from you or your partner. You can then make an affidavit (a written statement on oath), which your solicitor can present to the court on your behalf, along with any other evidence (for example, medical records or witness statements). It is quite likely that the court will want to see a medical report that confirms that you are suffering physically or mentally as a result of the abuse.

How does the court decide?

At the hearing, the court will hear evidence from you and your partner before deciding whether to grant an order. As this is a civil and not a criminal case, you won't need to prove 'beyond all reasonable doubt' that your partner has been threatening or abusing you. Instead the court will look at the evidence and decide whether it is more likely than not that the threats or abuse are taking place.

The court will grant an exclusion order when:

  • it is necessary to exclude your partner from the family home (this may be a home that you haven't yet moved in to), and
  • both you and your partner have rights to live there, and
  • your partner has done or threatened to do something to you or your children that has damaged or would damage you physically or mentally, and
  • you can prove that your partner has acted in this way (for example you may have a police report, a letter from your doctor, or evidence from a friend, family member or neighbour who has witnessed or heard the abuse or seen any injuries or other results of the abuse), and
  • your partner's harmful behaviour is likely to be repeated if you carry on living together and a pattern of such behaviour has been established, and
  • the exclusion order is necessary for your protection, and
  • the exclusion order is just and reasonable (for example, the court will look at the needs of any children you have, how you and your partner have behaved towards each other generally, and whether your partner needs access to your home for business or work purposes).

Can the court issue other protective orders?

If an exclusion order or interim exclusion order is granted, your solicitor can also ask the court to grant:

  • a warrant of ejection evicting your partner from your home, which can be enforced by the sheriff officers if your partner refuses to leave
  • an interdict banning your partner from re-entering your home without your permission, or from entering a specified area surrounding your home
  • an interdict preventing your partner from visiting the place where you work or your children's school
  • an interdict preventing your partner from removing household goods from your home without your written permission.

These additional orders (known as ancillary orders) will be granted unless your spouse or partner can satisfy the court that they aren't necessary.

The court must attach a power of arrest to an exclusion order or any interdict that was granted along with an exclusion order if you ask them to so. Speak to a solicitor who specialises in family law for further advice on this.

Will an exclusion order affect my tenancy?

No. If the tenancy is in your partner's name or is a joint tenancy, this will not change, even if they are no longer allowed to live in your home. However, you may be able to transfer the tenancy into your own name.

Will an exclusion order affect the ownership of our home?

No. If either you or your partner owns the family home, this will not be affected by an exclusion order.

Can my partner get the order changed?

Your spouse or partner can apply to the court to get the conditions of the order changed or to get it recalled altogether. Get advice from your solicitor if your partner takes this action.

How long does an exclusion order last?

This depends on your personal circumstances.

I'm married

If you are married, an exclusion order will last until:

  • you or your spouse applies to the court to suspend or change the order
  • you give up your rights to live in the family home, or your spouse does so
  • you get divorced
  • you die or your partner dies
  • you both lose your rights to live in the property, for example, because you have been evicted.

I'm in a civil partnership

If you are in a civil partnership, an exclusion order will last until:

  • you or your civil partner applies to the court to suspend or change the order
  • you give up your rights to live in the family home, or your civil partner does so
  • your partnership is dissolved by the court
  • you die or your partner dies
  • you both lose your rights to live in the property, for example, because you have been evicted.

I live with my partner

If you and your partner have been living together, an exclusion order will last:

  • for up to six months, or
  • until either you or your partner applies to the court to suspend or change the order.

Can the council help me?

If you have children and they are in danger from your partner or are suffering because of your partner's behaviour, you can ask the council (usually the social work department) to apply for an exclusion order to keep your partner away from your home. Your children don't have to be living in the family home when you apply for the order (so, for example, you may all be staying in a refuge at the time). If the court decides it is reasonable to grant an exclusion order, you partner won't be able to enter the family home for six months.

The council may also apply for an interdict with powers of arrest to keep your partner away from your children.

What if the court doesn't grant an exclusion order?

If an exclusion order is not granted, or if your solicitor advises you that it would not be appropriate to apply for one, you may be able to apply for an interdict. There are lots of different types of interdicts and you should get specific advice from your solicitor to find out what's appropriate for you.

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