Overview
Part IV of the Family Law Act 1996 enables a court to make an occupation order, broadly, where a person is suffering or is likely to suffer harm or domestic violence. Family lawyers often make applications for occupation orders alongside applications for non-molestation orders. The latter orders usually stipulate that a person must not contact or harass the applicant.
Occupation orders are designed to be temporary in nature, and are usually only granted for up to a year. Their purpose is to enable parties to organise their affairs, for example by dividing their rights in a property, or by deciding what the living arrangements will be for any minor children.
The Family Court will not examine in detail what ownership rights the parties have, or how the property in question should ultimately be divided. Such matters are determined in financial remedies proceedings under the Matrimonial Causes Act 1973 (see https://demstonechambers.co.uk/service/family-financial-proceedings/). Furthermore, the Court will not examine in detail, what the final living arrangements ought to be in relation to any minor children. Such matters are determined in proceedings under the Children Act 1989 (see https://demstonechambers.co.uk/service/child-contact-disputes/).
Eligibility
A common misconception is that there must be domestic abuse (see https://demstonechambers.co.uk/service/domestic-abuse-allegations/) before an occupation order can be made. Past instances of domestic abuse would be a significant consideration for the court, but domestic abuse is not a precondition to the making of an occupation order.
The purpose of an occupation order was accurately summed up by the court in the previous decision of 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].”
The five sections of the Family Law Act 1996 under which an occupation order may be made, namely sections 33–38, broadly reflect this. Accordingly, applicants must be:
(i) Entitled to occupy a dwelling-house by virtue of an interest in a lease or contract
(ii) 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.
(iii) a cohabitant or former cohabitant with someone who has an existing right to occupy the dwelling-house
(iv) 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.
The court’s approach
When considering whether to make an occupation order, the Court will consider:
- the housing needs and resources of each of the parties and any relevant child
- the financial resources of the parties
- the 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
- the conduct of the parties in relation to each other and otherwise.
This is a non-exhaustive list, meaning that the court may consider factors outside of those listed above when deciding whether to make an occupation order.
The “balance of harm” test
Where it appears to the court that, if an occupation order is not made, the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent the Court must make the order unless it appears to the court 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 is as great as, or greater than, the harm likely to be suffered by the applicant or child if the order is not made.
This test is called the “balance of harm” test. The test is usually fundamental to the court’s decision on whether to grant an occupation order.
How to win an occupation order case
Family lawyers are sometimes asked how a client can win an occupation order case. The answer is that a rigorous approach should be taken to produce the evidence that corresponds with the statutory criteria outlined above. Sometimes there will be obvious considerations such as the welfare of minor children. However, where there are no children involved, the key to success often lies in presenting a detailed picture of the behaviour of the other party that is said to justify the making of the order.
About us
For expert advice and assistance regarding occupation orders, or to arrange representation for a hearing of an application for an occupation order, contact our family law barristers. We are specialist family lawyers who can help with any aspect of family disputes, such as child arrangements, divorce, and matrimonial finance disputes. We are based in Milton Keynes, but we regularly help clients in the London and Birmingham areas.