Section 3(1) allows the sheriff to make a formal determination that an interdict is a:
“Domestic abuse interdict”
This determination has ONE purpose:
It is mandatory if you want to apply for a Power of Arrest under Section 4 of the the Domestic Abuse (Scotland) Act 2011 (“2011 Act”).
Without this Section 3(1) determination, no power of arrest can be attached to the interdict.
2. When is the Section 3(1) crave not required?
It is NOT required for:
A common-law interdict
E.g. interdict preventing harassment, approaching, contacting, threatening behaviour.
A statutory interdict under the Matrimonial Homes (Family Protection) (Scotland) Act 1981
E.g. interdict prohibiting entry to the family home or removing furniture, granted alongside an exclusion order.
Any interdict sought by a cohabitant,
Where the purpose is protection, but no power of arrest is sought.
An interdict remains fully valid and enforceable without being declared a “domestic abuse interdict”, but the police cannot automatically arrest on breach unless:
- it’s a criminal offence in itself, or
- a power of arrest has been attached.
3. When is a Section 3(1) determination required?
It is required if ALL of the following apply:
- You are seeking an interdict (common-law or statutory),
- You want it to be treated as a domestic abuse interdict, and
- You want the sheriff to attach a power of arrest.
Only in that scenario must your writ include:
“To make a determination in terms of Section 3(1) of the Domestic Abuse (Scotland) Act 2011 that the interdicts sought are domestic abuse interdicts…”
This opens the door to:
A Power of Arrest under Section 4(1) of the 2011 Act.
4. Why many exclusion-order writs DO include it
—but don’t have to
Many practitioners add a Section 3(1) crave because:
- Domestic abuse is involved; and
- A power of arrest greatly strengthens enforcement;
- It allows police to arrest immediately on breach of interdict.
But it is optional and not a legal requirement unless the power of arrest is sought.
Ready to discuss your case?
Contact XK Family Law Solicitors Aberdeen
Email: info@xksolicitors.co.uk
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For advice on your specific circumstances, contact XK Family Law Solicitors Aberdeen directly.