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Non-harassment orders for domestic abuse

You may also be able to take out a non-harassment order, also commonly known as a restraining order. Your partner can face arrest by the police and up to five years in prison and/or an unlimited fine if they break it.

What is a non-harassment (restraining) order?

If you get a non-harassment order granted against your partner (or anyone else who is harassing you), this means that they are no longer allowed to carry out the action(s) specified in the order. If they do, they will be committing a criminal offence.

The behaviour you want to prevent must have taken place at least twice before you can raise an action for harassment. This may be behaviour which is not in itself unlawful or abusive, but which is making you feel distressed or afraid. For example, you may be able to take out a non-harassment order to prevent your partner from phoning or texting you repeatedly, sending you letters or following you.

Who can take out a non-harassment order?

Anyone who is being harassed can apply for a non-harassment order. It is a remedy available to married people or cohabitees (whether heterosexual, gay or lesbian). It is also available to deal with harassment between other family members or from previous partners, neighbours or strangers.

How do I get a non-harassment order?

You may find it harder to get a non-harassment order than an interdict because the penalties for breaking the order are more severe. You'll need to get help from a solicitor, who will be able to advise you on your options (for example, on whether you should apply for an interdict instead) and can raise the action in court for you. If you are on benefits or a low income, you may be able to get legal aid to help pay the costs.

The procurator fiscal can also apply to the court for a non-harassment order during criminal proceedings that involve harassment in any way.

Will I have to go to court?

In most cases, you won't need to go to court in order to get a non-harassment order granted. If you do need to go to court to give evidence about the abuse, your solicitor will explain to you how court procedure works and what you'll need to do and say.

What happens at court?

When your solicitor raises an action of harassment in court, the sheriff has to decide whether it is reasonable to grant the order. Because this is a civil action, you don't need to prove 'beyond all reasonable doubt' that your partner is harassing you. The sheriff has to decide whether it is more likely than not that they are harassing you.

The sheriff can then decide:

  • to grant a non-harassment order to prevent your partner harassing you further, or
  • that it is not reasonable to grant a non-harassment order, or
  • to grant an interdict or interim interdict, and/or
  • to award damages to compensate for any anxiety you've suffered as a result of the harassment, or for any financial loss caused by the harassment.

What happens if the order is broken?

Breach of a non-harassment order is a criminal offence. If your partner breaks the order, they can face up to five years in prison and/or an unlimited fine. If the order is broken, contact the police immediately. It's up to the police and the procurator fiscal to enforce the order by taking your partner to court, which means that you won't have to raise (and pay for) any court actions yourself. However, you may have to go to court to give evidence against your partner. Your solicitor can help you prepare for this.

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