South Ayrshire Multi Agency Partnership
Information For Women
The Law
How will having a lawyer help me?
A helpful lawyer is a great asset. She/he will be able to explain in more detail
the legal rights outlined on this page and describe the court procedures that may
be necessary to enforce your rights. If you don't already know a lawyer, Women's
Aid will be able to recommend one for you, or see the list below.
She/he will be able to act on your behalf in applying for housing, or in getting
the police to take action against your partner. Don't be afraid of going to a lawyer.
She/he is there to help you and to take your instructions about how you want matters
dealt with. Listening to your lawyer's professional opinion will advise you on your
chances of success in any particular course of action. But remember that your lawyer
is working for you alone, not for you and your partner as a couple. If you are unhappy
with your lawyer, you are entitled to change, even if you have legal aid and/or
an action underway. It is better to change sooner rather than later.
How can I afford a lawyer?
Do not be put off consulting a lawyer because you are worried about the cost. You
may be entitled to financial help towards your legal costs. This help is called
Legal Aid, and Legal Advice and Assistance. Your lawyer will help you with filling
in the forms. Some lawyers give a first interview free of charge or charge a small
fixed fee - you can find out which ones from your local Citizens' Advice Bureau.
Every lawyer has a "key card" which allows them to work out there and
then whether you qualify for free legal advice and assistance, or qualify but have
to pay a contribution. If you are on benefits of any description, eg. income support,
incapacity benefit etc, you will automatically qualify for free legal advice and
assistance. Otherwise your eligibility will depend on your income and capital and
the number and ages of your children. If you seek advice because of problems with
your husband/partner, his income is disregarded.
If you are claiming benefits, you will qualify on financial grounds for Legal Aid
but you must still have grounds for the action. If you are not claiming Income Support,
the Legal Aid Board will look at all your income and outgoings and decide whether
you should get free legal aid or pay a contribution. Most contributions, which rise
steeply the more disposable income you have, have to be paid in monthly instalments.
If you need to raise an action urgently, it is possible to have emergency Legal
Aid granted immediately. This is done on the understanding that your full application
will be successful.
If you fail to establish grounds or don't qualify financially or don't co-operate
with the Legal Aid Board, eg by providing information requested, you will receive
a bill for work done by your lawyer while you had an emergency Legal Aid certificate,
if you are awarded a lump sum of more than a certain amount.
What if I have to appear in court?
Many women worry about taking any kind of legal action because they are afraid of
appearing in court. Going to court is likely to be less formal and less frightening
than you expect. Ask your lawyer to describe and explain the procedures beforehand.
If you can, go to court to hear another case before yours comes up.
If your partner/ex-partner is charged with a criminal offence (eg assaulting you)
and he pleads "not guilty", then you will be called as a witness and will
be expected to give evidence in court.
How can I apply for compensation?
If you have been injured as a result of a crime of violence, you can apply for payment
of compensation. You have to apply within one year of the date you were injured
and your injuries have to be considered to be serious enough.
Other conditions also apply. You must have reported the incident to the police without
delay and your partner/ex-partner must have been prosecuted (unless there are good
reasons why this cannot be done). You cannot apply if you are still living with
the man who injured you. To apply for compensation, you should write to: Criminal
Injuries Compensation Authority, Tay House, 300 Bath Street, Glasgow, G2 4JR. They
will send you a form to fill in and then, after making their own enquiries, they
will notify you of their decision. If you are not satisfied with the decision, you
can ask for a hearing.
Can I stop my abusive partner/ex-partner harassing me and make him leave me
alone?
Yes, in addition to any steps taken through the criminal court, you may also be
able to apply for protective orders through the civil court. These applications
have to be made by you, although it is possible to withhold your address. Your solicitor
may advise you to apply for more than one at the same time.
An interim interdict against abuse can be applied for very quickly. The interdict
has to set out the acts of abuse – threatened or actual – from which protection
is sought. Although some corroboration of the abuse is necessary the court is flexible
about the nature of that corroboration. Firsthand witnesses are ideal but failing
these, close family or friends who have witnessed you with injuries or in a state
of distress shortly after an incident can also provide evidence. Medical reports
and police reports are extremely helpful. An interim interdict, if not made final,
will last for up to twelve months. It can be recalled by an earlier order of the
court. The interdict will commonly cover abuse such as physical assault, verbal
abuse, causing distress by following, phoning or texting, attendance at a place
of work or a home or a child’s school. The terms of an interim interdict are flexible
and can be adapted to suit particular circumstances, for example, stating that your
partner cannot come within a certain distance of you or your home.
An application for interdict can also include an application for a power of arrest
to be attached to the interim interdict. It takes slightly longer for this to be
considered and your partner has to have notice of the hearing which is fixed to
consider the application. The court has to be satisfied that the power of arrest
is necessary and it is normal practice to produce evidence such as affidavits from
witnesses, a medical report, a police report or an extract conviction. Once a power
of arrest is granted by the court it has to be intimated to the perpetrator. The
police then have a record of it on their system and if you contact the police and
advise that there are reasonable grounds to believe that the interdict is being
breached the police have the power to proceed with an arrest. After that the proceedings
are dealt with by the procurator fiscal in a similar way to a criminal prosecution.
A power of arrest is now granted for a specified period up to a maximum of three
years.
A protection from harassment order can be obtained if a fairly consistent pattern
of abuse has been suffered. The court requires to be satisfied to a high standard
that there has been behaviour which is intended to harass you, that it has happened
on at least two occasions and that there is an intention to persist in this behaviour.
This is a rather more difficult order to obtain than an interdict or power of arrest
but it is a criminal offence to breach a non-harassment order and therefore it provides
effective protection.
Can I get my abusive partner/ex-partner out of my home?
Yes you can, depending on the circumstances.
An exclusion order can be granted to prevent your partner staying in or entering
the family home. The court has to be satisfied that the exclusion order is necessary
to protect you or your child/ren from physical or mental harm. Actual physical abuse
is therefore not always necessary to satisfy the requirements of an exclusion order.
However the evidence which a court requires before granting an exclusion order is
the same type as for a power of arrest but the court will normally require fairly
strong evidence before an exclusion order will be granted. The order can be granted
on either an interim or a final basis.
See the section on Housing for further
information.
Can I protect my children from my abusive partner/ex-partner?
Yes you can, you can apply for interdicts and non-harassment orders on behalf of
your children in the same way you would for yourself.
List of solicitors who advise on civil remedies:
- Elizabeth Welsh, Family Law Practice, 26 Miller Road Ayr, KA7 2AY 01292 284786
- Lynne Jeffery, D W Shaw, Solicitors, 34a Sandgate, Ayr 01292 265 033
- Morven Howell, D W Shaw, Solicitors, 20 West Portland Street, Troon, 01292 312 577
- Shona Gallagher, D W Shaw, Solicitors, Royal Bank Buildings, Glaisnock Street, Cumnock,
01290 421 484
- Mr T E Shaw, Mrs L McMath, Ms M S Walker – A C White, 23 Wellington Square, Ayr
01292 266 900
- Robert Campbell – R B Campbell & Co, 7 Wellington Square, Ayr, KA7 1EN, 01292
261 125
- Lauren Fowler- Frazer Coogans, Dalblair House, Dalblair Road, Ayr 02192 280499
Please note, this list is for general information purposes only. It does not constitute
advice, recommendation or endorsement by South Ayrshire Council.