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Eligibility to apply

This content applies to England & Wales

Who is eligible to apply for an occupation order.

Introduction

Occupation orders are available to cohabiting sole owners and to non-owners who have a beneficial interest or other rights to occupy (entitled applicants). They are also available to cohabitants with no right to occupy (non-entitled applicants). Prior to the Civil Partnership Act 2004, lesbians or gay men who were non-owning cohabitants could not apply for an occupation order because they did not come within the definition of 'cohabitants' under the Family Law Act 1996, but the definition of cohabitants is now 'two persons who are neither married to each other nor civil partners of each other but are living together as husband and wife or as if they were civil partners'.[1] There are different occupation orders depending on the situation.

Sole owners

Sole owners are always able to apply for occupation orders because of their ownership of the property (they are 'entitled' applicants). The orders can be applied for against anyone who is 'associated' with them according to the Act. This includes cohabitants and former cohabitants and anyone who has lived with them.

Non-owning cohabitants

For non-owning cohabitants, eligibility to apply for occupation orders will depend on the nature of their relationship with the owner of the property and whether or not the non-owning cohabitant has established a beneficial interest. Cohabitants and former cohabitants can always apply for an order, but the type of order will depend on whether they have an established beneficial interest. Cohabitants and former cohabitants with an established beneficial interest will apply for the same type of order as an owner would (ie they will be 'entitled' applicants). Where the beneficial interest is not finally established or there is no beneficial interest, they can apply for other types of orders as 'non-entitled' applicants.

[1] s.62(1)(a) Family Law Act 1996, para 13, Sch.9 Civil Partnership Act 2004.

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