Section 14 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 deals with a very specific and often misunderstood issue; when one spouse seeks legal protection from the other while they are still living together in the matrimonial home.

Many people assume that an interdict (a Scottish court order preventing certain behaviour) can only be granted once spouses have separated. Section 14 makes it clear that this is not the case.

What Does Section 14 Say?

Section 14 provides that it is not incompetent (in other words, it is legally valid) for the court to grant a matrimonial interdict even if the couple are still living together as husband and wife.

This is important because, before the 1981 Act, courts were sometimes reluctant to intervene in situations where the spouses had not yet separated. The law now expressly allows protective orders to be granted within an ongoing marriage.

What Is a Matrimonial Interdict?

A matrimonial interdict is an order granted by the sheriff court or Court of Session to restrain certain conduct by one spouse towards the other spouse or a child of the family.

Under Section 14(2), a matrimonial interdict can prohibit a spouse from:

  • Engaging in abusive, threatening, or harassing behaviour towards their partner or a child;
  • Entering or remaining in the matrimonial home;
  • Entering another residence occupied by the applicant spouse;
  • Entering the applicant spouseโ€™s place of work; or
  • Attending a school attended by a child in the care of the applicant spouse.

When Can an Interdict Prevent Entry to the Matrimonial Home?

This is where Section 14 becomes more technical.

If the non-applicant spouse (the person the interdict is sought against) owns or rents the property (i.e. is an entitled spouse) or has occupancy rights, the court cannot normally grant an interdict that prohibits them from entering or remaining in the matrimonial home.

There are two exceptions to this rule:

  1. Where the interdict is ancillary to an exclusion order โ€“ that is, the court has already decided to exclude that spouse from the home under Section 4 of the 1981 Act; or
  2. Where the court has refused leave for that spouse to exercise occupancy rights under Section 1(3) of the Act.

In other words, if the spouse still has a legal right to occupy the home, the court cannot use an interdict alone to remove them, an exclusion order under section 4 of the Act is required instead.

Interdicts vs Exclusion Orders

The distinction between an interdict and an exclusion order is crucial.

  • An interdict restrains or regulates behaviour (for example, preventing threats, harassment, or unwanted entry).
  • An exclusion order, made under Section 4 of the Act, actually suspends a spouseโ€™s occupancy rights and removes them from the home entirely.

If you are seeking to have your spouse removed from the home, you will need to apply for an exclusion order.
If you wish to restrain certain conduct or protect yourself or a child without removing your spouse from the home, an interdict under Section 14 may be the appropriate remedy. The court may also grant an interim interdict in urgent cases, which takes immediate effect pending a full hearing.

If there is a risk of violence or harassment, your solicitor can also seek a power of arrest to attach to the interdict under the Protection from Abuse (Scotland) Act 2001, allowing the police to arrest the respondent if they breach the order.

Related Reading

If you are considering legal protection or are unsure which type of order applies to your circumstances, you may find these articles useful:

Get Expert Advice

At XK Family Law Solicitors Aberdeen, we specialise in advising clients on their rights and protections under the Matrimonial Homes (Family Protection) (Scotland) Act 1981.

If you are experiencing difficulties at home and need urgent advice about interdicts or exclusion orders, contact us for confidential advice and representation.

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Our website articles are not legal advice. We accept no responsibility for use of this information.
For advice on your specific circumstances, contact XK Family Law Solicitors Aberdeen directly.