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Exclusion Orders in Scotland

Being a victim of domestic violence or abuse either from a spouse, partner or any other person can be a very frightening experience. But there are actions you can take under the law and an Exclusion Order is one such protection which the legal system can offer you. 

An Exclusion Order is basically a court order preventing your partner (or ex-partner) from entering your home, whether or not they have a legal entitlement to reside there.

Frequently asked questions

The following are some of our most frequently asked questions when it comes to Exclusion Orders.

An Exclusion Order is essentially an order granted by the Sheriff Court which prevents a married person or civil partner from coming back to the family home. An Exclusion Order is granted if the court is satisfied that it is necessary for your safety, particularly if you have been a victim of domestic violence. The Sheriff will also consider the safety of any children living in the home.  An Exclusion Order can also be granted for cohabiting couples where they are joint owners of the property (or joint tenants in the case of a rented property) and both have occupancy rights to the property.

We can guide you through this process.

You have to apply to your local Sheriff Court in writing for an Exclusion Order.

To apply, you must:

  • Be married, or
  • Be in a registered civil partnership, or
  • Be living as civil partners as if you were married, or
  • Both have rights to occupy the home (such as if the lease to the family home was in joint names)

You can apply for an Exclusion Order whether your partner is an entitled or non-entitled spouse. That means that it does not matter whether you or your partner has a propriety right to reside in the home, the order is decided on the basis of the behaviour of the person you are trying to exclude. 

You do not have to be currently residing in the family home to apply for an Exclusion Order and can still do this is you are temporarily staying with family or in a refuge. However, your right to apply for an Exclusion Order will lapse if you have been living away from the family home for two years or more.

The court has to apply a very strict test when deciding on an application for an Exclusion Order. The court would need to hear independent evidence of the risk of physical harm, or the impact on your mental health. For example, a report from your GP may be helpful to verify your position, or verbal evidence from any friends, family or neighbours who may have witnessed you being the victim of domestic abuse. Police reports can also be looked at. You will also need to demonstrate that your partner has alternative accommodation available.

It can often be difficult to successfully obtain an Exclusion Order and each case will be looked at individually. The more evidence that can be provided to prove to the Sheriff that you have been a victim of domestic abuse, the greater the prospects of success.

This depends on the circumstances of your case. Our Family Law Solicitors will be able to advise you about this. For example, if you are married to the individual, the order is likely to last until you or your spouse apply to the court to have it removed or changed.

If you find yourself in an emergency situation and feel as though you are at imminent risk of harm, you can apply to the court for an interim Exclusion Order, which will give you protection until the full order is granted. 

An interim Exclusion Order is essentially a temporary order granted by the Sheriff to protect you while the formalities of the case are ongoing. This would especially be the case if your ex-partner was to defend the case and the Sheriff needed to hear lengthy evidence before making a final decision.

Normally you will not need to come to court and give evidence in support of your application for an Exclusion Order. An interim order can be granted without the court having to hear any evidence from you and you can basically give your full evidence to the court in a form of a written affidavit, which is basically a sworn statement taken from you in the presence of your Solicitor.

The court will require to see evidence that you are suffering as a result of the abuse, whether that is physically or mentally. A medical report will normally be required to confirm this to the court.

In some cases, where the exclusion order is opposed, the judge may wish to hear from you in person, so you may have to come to court to give evidence, although that is rare.

An Exclusion Order protects you against threatening or abusive behaviour. This includes verbal abuse as well as physical abuse which causes you to fear for your safety or for the safety of your children.

The breach of an Exclusion Order is essentially a criminal offence and is punished by the courts accordingly.

If your ex-partner ignores the Exclusion Order, or any condition of the order, and tries to enter the home then they will be in violation of the court order.

There are serious consequences if they do this as they would be committing a criminal offence which can be punished by up to five years in prison or a substantial fine. If your ex-partner breaches the Exclusion Order, you should contact the police immediately so that the appropriate action can be taking against your ex-partner. The responsibility to bring a breach to the attention of the authorities lies with you.

You should be aware that your spouse or partner can apply to the court to have the conditions of the Exclusion Order changed or even have the order completely removed. 

How can Thorntons help?

If you or someone you know is suffering from domestic abuse, speak to a Solicitor about the legal options available to give protection, including an Exclusion Order. If you want to apply for an order, a Family Law Solicitor can help you with this, dealing with what can often be a complex and emotional issue for you. Our Family Law team can guide you through the application process and help you deal with any breach of the order or application by your ex to change the order.

At Thorntons Family Law, we offer an initial free no-obligation chat over the phone to outline your options and the possible costs.

Depending on your case and circumstances, the next step is to come into one of our local offices to meet a Family Law Solicitor about your case and the way forward.

Call us on 03330 430 150 for a chat or contact us to book an appointment.

How much will it cost?

We are always clear to clients about the potential costs of any option and offer a range of payment options. In some cases we can offer clients a fixed price package. If we cannot offer a fixed price service, we charge based on the time we spend on your case, including meetings, emails, phone calls and court representations. Depending on your case and circumstances, you may also need to cover outlays, such as court costs or payments to independent experts. We will set out our fees and likely extra costs for you at the start and keep you informed of any possible changes as your case progresses.

Please note we do not offer Legal Aid for this service.