Domestic interdicts for cohabiting owner occupiers

Either partner can apply to the court for a domestic interdict providing both have the right to occupy the family home. If there is a non-entitled partner s/he must apply to the court for an order granting occupancy rights before s/he can apply for a domestic interdict.

This can be done even while the couple are still living together. [1] A domestic interdict can be used to restrain or prohibit particular conduct from one partner to the other or any conduct towards any child of the family. [2] For example, such an interdict could prohibit violent behaviour or conduct which place the spouse and/or child in a state of fear and alarm.

If they are granted after 4 May 2006 [3] domestic interdicts can also be used to prevent the non-applicant partner from entering or remaining in: [4]

• any residence, other than the matrimonial home, occupied by the applicant partner

• any place of work of the applicant partner

• any school attended by a child in the temporary or permanent care of the applicant partner.

Interdicts can only be used to exclude the non-applicant partner from the family home entirely when they are granted ancillary to an exclusion order [5] or where an application to the court for occupancy rights by the non-entitled partner has been rejected.

If the sole tenant's partner does not have occupancy rights then the tenant could use the provisions of the Protection from Abuse (Scotland) Act to obtain an interdict with powers of arrest attached. When asked, the court must attach a power of arrest to any domestic interdict granted ancillary to an exclusion order. [6] For more information, please see the section on housing and domestic abuse.