The purpose of the Family Law Act 1996 is to regulate homes in which its occupants are suffering or are likely to suffer harm or domestic violence.
The orders which are primarily sought under the Family Act are:
1) non-molestation orders
2) occupation orders
3) exclusion orders
All of these orders are designed to be temporary in nature, and are usually only granted for up to a year. The time for which such order are granted allows the parties to organise their affairs, whether its the division of property, or deciding what final child living/ contact arrangements ought to be in place.
For the purposes of this article, the focus will be on applications for occupation orders.
As a starting point, it is important to remember that when considering whether to make an occupation order, the Court will not seek to determine ownership rights of the relevant property, and how the property will be distributed. Those matters will be determined in proceedings under the Matrimonial Causes Act 1973. Furthermore, the Court will not consider or determine what final child living/ contact arrangements ought to be in place. Those matters will be determined in proceedings under the Children Act 1989.
The purpose of an occupation order was accurately summed up by Moylan J in T v T [2010] EWHC 3776 (Fam). At paragraphs 94-95, occupation orders were defined as:
''(…) a measure intended to preserve and protect a spouse or former spouse's rights (…)
Namely (…) matrimonial home rights (…) pending determination by [the court having
jurisdiction as to the substance of the matter].”
When an application for an occupation order is considered, the court will first consider under which provision of the Family Law Act the Applicant's application will fall.
There are five sections of the Family Law Act under which an occupation order may be made i.e. Section 33, 35, 36, 37 and 38 of the Family Law Act 1996. Applicants for occupation orders must fall under one of the five sections for an order to be made.
To qualify, the Applicant must be:
(1) entitled to occupy a dwelling-house by virtue of an interest in a lease or contract; or
(2) have matrimonial rights in relation to a dwelling-house, either by being a current spouse of someone who has rights to that home, or a former spouse of someone contending they have a right to occupy that home; or
(3) be a cohabitant or former cohabitant with someone who has an existing right to occupy the dwelling house; or
(4) be a spouse or former spouse of someone where neither party has a right currently to occupy the former matrimonial home, yet is occupying the home (or claiming to have a right to occupy the home) through a bare licence.
When considering whether to make an occupation order, the Court will consider:
1) the housing needs and resources if each of the parties and any relevant child
2) the financial resources of the parties
3) likely effect of any order or any decision by the court on the health, safety and well-being of the parties and of any relevant child.
4) the conduct of the parties in relation to each other and otherwise.
Where it appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if an occupation order is not made, the Court shall make the order unless it appears to it that—
(a)the respondent or any relevant child is likely to suffer significant harm if the order is made; and
(b)the harm likely to be suffered by the respondent or child in that event is as great as, or greater than, the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made.
This test is called the “balance of harm” test, and is what forms the backbone of decisions of the court when considering whether or not to grant an application for an occupation order.
Factors which are to be consider when considering whether to make an occupation order, the Court will consider:
1) the housing needs and resources if each of the parties and any relevant child
2) 2) the financial resources of the parties
3) 3) likely effect of any order or any decision by the court on the health, safety and well-being of the parties and of any relevant child.
4) the conduct of the parties in relation to each other and otherwise.
It is however important to remember that this is a non-exhaustive list. i.e. the court may consider factors outside of the factors listed above when considering whether to make an occupation order.
A common misconception is that domestic violence must be present before an occupation order is made. Past perpetration of domestic violence/ abuse is a significant factor considered by judges considering applications for occupation orders.
For expert advice and assistance regarding occupation orders, or to arrange representation for a hearing of an application for an occupation order, contact the family law team at Pine Legal. We are London-based family law solicitors. We are specialists who can help with any aspect of family disputes, such as child arrangements, divorce, and matrimonial finance.
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