Sixty-one per cent of the incidents of domestic abuse recorded in 2022 to 2023 did not involve criminal conduct. The civil remedies available for victims of domestic abuse should therefore be fit for purpose.

Civil remedies are court orders sought by victims against the perpetrators of domestic abuse. The remedies include a court order which removes a perpetrator from the family home, and an order preventing a perpetrator from coming within a certain distance of the family home. Being able to seek a civil remedy can ensure victims receive protection.

The law in this area has been criticised for being spread over many different acts, for being overly complicated and inaccessible, and for lack of clarity about appropriate remedies.

Additional criticism includes:

• Insufficient recognition of the impact of domestic abuse on children, particularly in child contact disputes;
• Insufficient communication between the civil and criminal courts in domestic abuse cases: the civil courts may be unaware of criminal proceedings against the perpetrator;
• The tests for certain court orders (such as exclusion orders) are too high, making it difficult for a victim to get the protection they need;
• Cohabitants are not automatically entitled to the same level of protection as spouses and civil partners;
• Victims can be exposed to their abuser in court, and special measures are needed to protect them in the court and the building.

The discussion paper considers how the law could be improved and puts forward proposals for change. In particular, the commission seeks views on a proposed new delict of domestic abuse.

This would introduce a definition of “abusive behaviour” in the civil law for the first time. It could also take into account specific types of abuse, including tech abuse, immigration abuse, and economic abuse.

Professor Gillian Black, commissioner on this project, said: “Domestic abuse violates the trust at the heart of intimate relationships, and the statistics show that it is a critical problem in Scotland.

“The legal system can play a vital role in tackling domestic abuse, but it requires the law to be relevant and accessible. Too many parties have told us that the current civil law is overly-complex and fails to meet the needs of victims seeking protection from their abuser. In this discussion paper, we set out proposals to improve and strengthen the civil law, and introduce a new civil remedy to offer meaningful protection orders for victims and children. We welcome input on these proposals in this consultation exercise.”

The Scottish Law Commission invites comments from everyone with an interest. Responses to the discussion paper can be made until 22 January 2025.