Matrimonial Homes (Family Protection) (Scotland) Act 1981

Matrimonial interdicts

14 Interdict competent where spouses live together

(1) It shall not be incompetent for the court to entertain an application by a spouse for a matrimonial interdict by reason only that the spouses are living together as man and wife.

(2) In this section and section 15 of this Act—

• " matrimonial interdict" means an interdict including an interim interdict which—

  (a)

  restrains or prohibits any conduct of one spouse towards the other spouse or a child of the family, or

  (b)

  prohibits a spouse from entering or remaining in a matrimonial home or in a specified area in the vicinity of the matrimonial home.

15 Attachment of powers of arrest to matrimonial interdicts

(1) The court shall, on the application of the applicant spouse, attach a power of arrest—

(a) to any matrimonial interdict which is ancillary to an exclusion order, including an interim order under section 4(6) of this Act;

(b) to any other matrimonial interdict where the non applicant spouse has had the opportunity of being heard by or represented before the court, unless it appears to the court that in all the circumstances of the case such a power is unnecessary.

(2) A power of arrest attached to an interdict by virtue of subsection (1) above shall not have effect until such interdict is served on the non-applicant spouse, and such a power of arrest shall, unless previously recalled, cease to have effect upon the termination of the marriage.

(3) If, by virtue of subsection (1) above, a power of arrest is attached to an interdict, a constable may arrest without warrant the non-applicant spouse if he has reasonable cause for suspecting that spouse of being in breach of the interdict.

(4) If, by virtue of subsection (1) above, a power of arrest is attached to an interdict, the applicant spouse shall, as soon as possible after service of the interdict on the non-applicant spouse, ensure that there is delivered—

(a) to the chief constable of the police area in which the matrimonial home is situated; and

(b) if the applicant spouse resides in another police area, to the Chief constable of that other police area,

a copy of the application for the interdict and of the interlocutor granting the interdict together with a certificate of service of the interdict.

(5) Where any matrimonial interdict to which, by virtue of subsection (1) above there is attached a power of arrest, is varied or recalled, the spouse who applied for the variation or recall shall ensure that there is delivered—

(a) to the chief constable of the police area in which the matrimonial home is situated ; and

(b) if the applicant spouse (within the meaning of subsection (6) below) resides in another police area, to the chief constable of that other police area,

a copy of the application for variation or recall and of the interlocutor granting the variation or recall.

(6) In this section and in sections 16 and 17 of this Act—

• " applicant spouse " means the spouse who has applied for the interdict; and

• " non-applicant spouse " shall be construed accordingly.

16 Police powers after arrest

(1) Where a person has been arrested under section 15(3) of this Act, the officer in charge of a police station may—

(a) if satisfied that there is no likelihood of violence to the applicant spouse or any child of the family, liberate that person unconditionally ; or

(b) refuse to liberate that person ; and such refusal and the detention of that person until his or her appearance in court by virtue of—

(i) section 17(2) of this Act; or

(ii) any provision of the [1975 c. 21.] Criminal Procedure (Scotland) Act 1975, shall not subject the officer to any claim whatsoever.

(2) Where a person arrested under section 15(3) of this Act is liberated under subsection (1) above, the facts and circumstances which gave rise to the arrest shall be reported forthwith to the procurator fiscal who, if he decides to take no criminal proceedings in respect of those facts and circumstances, shall at the earliest opportunity take all reasonable steps to intimate his decision to the persons mentioned in paragraphs (a) and (b) of section 17(4) of this Act.

17 Procedure after arrest

(1) The provisions of this section shall apply only where—

(a) the non-applicant spouse has not been liberated under section 16(1) of this Act; and

(b) the procurator fiscal decides that no criminal proceedings are to be taken in respect of the facts and circumstances which gave rise to the arrest.

(2) The non-applicant spouse who has been arrested under section 15(3) of this Act shall wherever practicable be brought before the sheriff sitting as a court of summary criminal jurisdiction for the district in which he or she was arrested not later than in the course of the first day after the arrest, such day not being a Saturday, a Sunday or a court holiday prescribed for that court under section 10 of the [1980 c. 4.] Bail etc. (Scotland) Act 1980:

Provided that nothing in this subsection shall prevent the non-applicant spouse from being brought before the sheriff on a Saturday, a Sunday or such a court holiday where the sheriff is in pursuance of the said section 10 sitting on such day for the disposal of criminal business.

(3) Subsections (1) and (2) of section 3 of the [1980 c. 62.] Criminal Justice (Scotland) Act 1980 (intimation to a named person) shall apply to a non-applicant spouse who has been arrested under section 15(3) of this Act as they apply to a person who has been arrested in respect of any offence.

(4) The procurator fiscal shall at the earliest opportunity, and in any event prior to the non-applicant spouse being brought before the sheriff under subsection (2) above, take all reasonable steps to intimate—

(a) to the applicant spouse ; and

(b) to the solicitor who acted for that spouse when the interdict was granted or to any other solicitor who the procurator fiscal has reason to believe acts for the time being for that spouse,

that the criminal proceedings referred to in subsection (1) above will not be taken.

(5) On the non-applicant spouse being brought before the sheriff under subsection (2) above, the following procedure shall apply

(a) the procurator fiscal shall present to the court a petition containing—

(i) a statement of the particulars of the non-applicant spouse;

(ii) a statement of the facts and circumstances which gave rise to the arrest; and

(iii) a request that the non-applicant spouse be detained for a further period not exceeding 2 days;

(b) if it appears to the sheriff that—

(i) the statement referred to in paragraph (a)(ii) above discloses a prima facie breach of interdict by the non-applicant spouse;

(ii) proceedings for breach of interdict will be taken; and

(iii) there is a substantial risk of violence by the non-applicant spouse against the applicant spouse or any child of the family,

he may order the non-applicant spouse to be detained for a further period not exceeding 2 days ;

(c) in any case to which paragraph (b) above does not apply, the non-applicant spouse shall, unless in custody in respect of any other matter, be released from custody;

and in computing the period of two days referred to in paragraphs (a) and (b) above, no account shall be taken of a Saturday or Sunday or of any holiday in the court in which the proceedings for breach of interdict will require to be raised.