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Sole owner/non-owner with interest

This content applies to England & Wales

Occupation orders that are available for sole owner cohabitants or non-owning cohabitants who have established a beneficial interest.

Where the sole owner cohabitant wishes to stay in the family home, s/he can apply for an occupation order as an entitled applicant.[1] As the sole owner has rights to occupy under property law and the cohabiting partner will usually be an excluded licensee, in practice s/he would not need to apply unless there is a dispute about rights (declaratory order) or the non-owning cohabitant refuses to leave the property (regulatory order). There may be a dispute in situations where the non-owning cohabitant has an established beneficial interest, in which case s/he can also apply as an entitled applicant.[2]

Duration of orders

At the court's discretion, occupation orders can last:

  • indefinitely
  • for a certain length of time, or
  • until a specific event occurs.[3]

Declaratory provisions

If an order is made, it may contain the following declaratory provisions:

  • to declare that the applicant is entitled to occupy[4]
  • to enforce the applicant's right of occupation[5]
  • to allow the applicant to enter the home if s/he is excluded.[6]

Regulatory provisions

In addition, the court may attach further regulatory provisions:

  • to regulate the occupation of the dwelling by either or both of the parties[7]
  • to exclude the other partner from all or part of the home[8]
  • 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)[9]
  • 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.[10]

Other provisions the court can attach

When the court makes an occupation order, it may include certain provisions in addition to declaring/regulating who can live in the home and/or who is excluded from it. It can:

  • impose obligations on either partner to repair or maintain the home or to take responsibility for the mortgage and other outgoings. This could temporarily end the sole owner's liability for the mortgage, and order that the non-owner take on that liability.[11] The liability ceases when the occupation order ends[12]
  • oblige the partner who remains in occupation to make payments to the other partner who has been excluded from all or part of the home[13] This is sometimes known as an occupation rent, and is intended as a compensation for the loss of the right to occupy
  • make orders regarding other outgoings and who should carry out repairs and maintenance[14]
  • make orders granting use of furniture and contents, and orders to take reasonable care of furniture, contents and the home generally.[15]

These provisions end when the occupation order ends.[16]

Circumstances in which an occupation order can be granted

The court has the power to grant an order where it considers it just and reasonable to do so, but it must consider specific criteria when reaching its decision. It must have regard to all the circumstances of the case, including:

  • the housing needs and housing resources of each of the parties and any relevant child. Housing resources are likely to include whether either party would qualify for rehousing under homelessness or allocations legislation (see the Allocation of LA housing section and the Homelessness section for details). A 'relevant child' is defined as a child who lives with or could be expected to live with either party, a child subject to an order under the Adoption Act 1976 or the Children Act 1989 that is in question in the occupation order proceedings, or any other child whose interests the court considers to be relevant
  • the financial resources of each party
  • the likely effect of any order or the effect of not making an order, on the health, safety or wellbeing of the parties and of any relevant child
  • the conduct of the parties.[17]

Occupation orders can, therefore, deal with occupation of the home in both violent and non-violent relationship breakdown situations.

In addition to the criteria above, the court must also consider the likelihood of 'significant harm' to any of the parties concerned and the 'balance of harm'.

Balance of harm test

This means that the court must consider the likelihood of significant harm to either party and any relevant child if an order is made, balanced against the likelihood of significant harm if an order is not made. The test is applied in the following way: the court considers whether there is significant harm to the applicant or any relevant child. If there is, it must make an order, unless:

  • the other party or any relevant child is likely to suffer significant harm if the order is made, and
  • the harm in that case is as great or greater than the harm likely to be suffered by the applicant or any relevant child (as a result of the other party's behaviour) if the order is not made.[18]

If the court does not consider that significant harm is likely, it is not obliged to make an order, but can do so if it sees fit.

The Act defines 'harm' as ill-treatment or impairment of health, and, for children under 18, also the impairment of development. Ill-treatment includes non-physical forms. Health includes physical or mental health and, in relation to a child, child abuse. Development means physical, intellectual, emotional, social or behavioural development. A child's health or development should be compared with the health and development that 'could reasonably be expected of a similar child'.[19]

[1] s.33(1) Family Law Act 1996.

[2] s.33(1) Family Law Act 1996.

[3] s.33(10) Family Law Act 1996.

[4] s.33(4) Family Law Act 1996.

[5] s.33(3)(a) Family Law Act 1996.

[6] s.33(3)(b) Family Law Act 1996.

[7] s.33(3)(c) Family Law Act 1996.

[8] s.33(f) Family Law Act 1996.

[9] s.33(3)(d) Family Law Act 1996.

[10] s.33(3)(g) Family Law Act 1996.

[11] s.40(1)(a) Family Law Act 1996.

[12] s.40(3) Family Law Act 1996.

[13] s.40(1)(b) Family Law Act 1996.

[14] s.40(1)(a) Family Law Act 1996.

[15] s.40(1)(c)-(e) Family Law Act 1996.

[16] s.40(3) Family Law Act 1996.

[17] s.33(6) Family Law Act 1996.

[18] s.33(7) Family Law Act 1996.

[19] s.63(3) Family Law Act 1996.

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