When separation and divorce reveal domestic abuse: understanding the options available in Scotland

Written by Emma Roman

As we come to the end of Domestic Abuse Awareness Month, I have been reflecting on a training session I recently attended on mediation in cases involving domestic abuse. It was a thought-provoking session and one which challenged some of the assumptions people may have about the appropriateness of mediation in situations involving domestic abuse.

Domestic abuse is not always obvious. Whilst physical violence may be what first comes to mind, abuse can take many forms. We frequently see situations involving coercive and controlling behaviour, financial abuse, intimidation, emotional abuse, isolation from family and friends, and ongoing harassment. In many cases, the individual experiencing that behaviour may not initially recognise it as abuse.

The law in Scotland has also evolved to recognise this reality. The Domestic Abuse (Scotland) Act 2018 created a specific criminal offence of engaging in a course of abusive behaviour towards a partner or former partner, recognising that domestic abuse is often characterised by patterns of coercive and controlling behaviour rather than isolated incidents of physical violence.

The training session I attended really brought home the impact that domestic abuse can have on the whole family, particularly children. Hearing the experiences of children who had been exposed to domestic abuse within their home was harrowing and served as an important reminder that abusive behaviour in the family home can have a significant and lasting impact on children.

Mediation can be an effective way of resolving family disputes without the need for court proceedings. However, where domestic abuse is present, there can be a significant imbalance of power between the parties. One person may feel unable to speak openly, negotiate freely or challenge proposals being put forward. Careful assessment during initial appointments is therefore essential before mediation is considered, to ensure that the process is appropriate and that both parties can participate safely and effectively.

Something that particularly resonated with me was the recognition that separation is not always the end of abusive behaviour. In fact, it can sometimes be the point at which matters escalate. What may initially appear to be a difficult separation can sometimes reveal a pattern of coercive, controlling or harassing behaviour requiring legal protection.

In those circumstances, the Scottish courts have a range of remedies available.

A Domestic Abuse Interdict can be used to prohibit an individual from carrying out certain acts, such as contacting their ex-partner, attending at their home or workplace, or engaging in threatening, abusive or harassing behaviour. Where appropriate, a domestic abuse interdict determination can be attached, giving the police powers to arrest a person suspected of breaching the order. Such orders can provide important protection where there are concerns about ongoing abuse or the risk of further abusive behaviour.

A Non-Harassment Order may also be available where a person's behaviour is causing alarm or distress. These orders can provide important reassurance and protection where there are ongoing concerns about an individual's conduct. Breaching a Non-Harassment Order is a criminal offence.

For those who continue to share a home with an abusive spouse or partner, an Exclusion Order may also be an option. An Exclusion Order can suspend a person's occupancy rights and require them to leave the family home. Before granting such an order, the court requires to be satisfied that it is necessary for the protection of the physical or mental wellbeing of the applicant or any children involved. The court must carefully consider all the circumstances before deciding whether such an order is justified.

Whilst many family disputes can be resolved through negotiation or mediation, there are situations where protective measures are necessary to safeguard an individual's wellbeing and allow them to move forward safely. Understanding the options available is often the first step. Seeking advice at an early stage can help identify the support and legal protections available.