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Occupation orders under FLA 1996

This content applies to England & Wales

Occupation orders that can be granted under the Family Law Act 1996.

Introduction to occupation orders

Occupation orders are orders made by the courts to enforce, declare or restrict rights to occupy the home. They are only a short-term solution and will not affect what happens to the property in the final settlement. Occupation orders can be granted under a number of different sections of the Act. The main differences between the orders are:

  • who can apply for them
  • the criteria the court must use
  • the length of time they may last.

Under each section of the Act, the court may make:

  • a declaratory order, ie an order that declares, extends or grants the right to occupy, or
  • a regulatory order, ie an order that controls or restricts existing rights to occupy all or part of the home, or
  • both types or order.

Declaratory orders

Either cohabitant may apply to the court for a declaratory order, for example if they both wish to stay in the property but one partner is arguing that the other partner has got to leave. Declaratory orders declare, extend or grant occupation rights.[1] They are used:

  • to declare that the applicant is entitled to occupy
  • to enforce the applicant's right of occupation
  • to allow re-entry to the home if excluded.

Regulatory orders

Either cohabitant may apply for a regulatory order, for example if it is necessary to stop the other partner from entering the home. Regulatory orders control or restrict existing rights (they were previously referred to as ouster or exclusion orders).[2] They may be used:

  • to regulate the occupation of the dwelling by either or both of the parties
  • to exclude the other partner from all or part of the home[3]
  • to prohibit, suspend or restrict the other person's rights to occupy (the court has no power to completely terminate these rights, only to suspend them)
  • to exclude the other party from a defined area around the home, for example the particular estate or the cul-de-sac where the property is situated.

Occupation orders do not affect long-term rights of occupation, but grant the equivalent of long-term rights for as long as the order is in force. This includes the right to pay the mortgage and the right to intervene in possession proceedings.

[1] s.33(3)(a) and (b) and s.33(4) Family Law Act 1996; s.36(3)(a) and (b) and s.36(4) Family Law Act 1996.

[2] s.33(3)(c),(d),(f) and (g) Family Law Act 1996; s.36(5) Family Law Act 1996.

[3] see for example, Re L (Children) [2012] EWCA Civ 721.

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