Occupation orders if one partner is the sole tenant

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 do not affect what happens to the property in the final settlement.

Occupation orders can be granted under a number of different sections of the Family Law Act 1996. There are different occupation orders depending on the situation.

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 either:

• a declaratory order, ie an order which declares, extends or grants the right to occupy

• a regulatory order, ie an order which controls or restricts existing rights to occupy all or part of the home

• 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 must leave.

Declaratory orders declare, extend or grant occupation rights. They are used to:

• declare that the applicant is entitled to occupy[1]

• enforce the applicant's right of occupation[2]

• allow re-entry to the home if excluded[3]

Regulatory orders

Either cohabitant may apply for a regulatory order, for example to stop the other partner from entering the home or to make them leave. Regulatory orders control or restrict existing rights (they were previously referred to as ousters or exclusion orders).

Each partner may apply for the following regulatory orders to:

• regulate the occupation of the dwelling by either or both of the parties[4]

• exclude the other partner from all or part of the home[5]

• 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)[6]

• 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[7]

For cohabiting sole tenants, the right to apply for an occupation order varies depending on whether the applicant has a right to occupy (entitled) or has no right to occupy (non-entitled).

Where the sole tenant or licensee is a cohabitant or former cohabitant, they are an entitled applicant because they are the tenant.

A non-tenant or non-licensee cohabitant or former cohabitant is a non-entitled applicant because they are not the tenant and, therefore, they have no housing rights.

Where neither partner has a right to occupy, both are non-entitled applicants. This category includes excluded tenants and licensees whose contracts have been ended and non-contractual (bare) licensees because they occupy by simple permission, rather than under a contract or statute.

Definition of cohabitants

The definition of cohabitants is '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'.[8]

Prior to the Civil Partnership Act 2004, lesbians or gay men with no right to occupy could not apply for an occupation order because they did not come within the definition of 'cohabitants' under the Family Law Act 1996.

Occupation orders are available for tenant/licensee cohabitants. Different occupation orders are available for non-tenant/licensee cohabitants.

Where the tenant/licensee cohabitant wishes to stay in the family home, they can apply for an occupation order as an entitled applicant.[9]

As the tenant/licensee has rights to occupy under housing law and the cohabiting partner is a bare licensee, in practice they would not need to apply unless there is a dispute about rights (declaratory order) or the non-tenant/non-licensee refuses to leave the property (regulatory order).

Duration of orders

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

• indefinitely

• for a certain length of time

• until a specific event occurs[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.

The court can:

• impose obligations on either partner to repair or maintain the home or to take responsibility for rent and other outgoings. This could temporarily end the sole tenant's/licensee's liability for rent and order that the non-tenant/non-licensee cohabitant take on that liability[11]

• 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.[12] This is sometimes known as an occupation rent and is intended as a compensation for the loss of the right to occupy[13]

• impose obligations regarding payment of the rent, eg this could transfer a tenant's/licensee's liability for rent and order that the other party take on that liability. The liability ceases when the occupation order ends[14]

• make orders granting use of furniture and contents, and orders to take reasonable care of furniture, contents and the home generally[15]

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. 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

• financial resources of each party

• likely effect of any order, or the effect of not making an order, on the health, safety or well-being of the parties and of any relevant child

• conduct of the parties[16]

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 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[17]

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 Family Law Act defines 'harm' as ill-treatment or impairment of health, and, for children under the age of 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'.[18]

Where the other cohabitant or former cohabitant is the tenant/licensee, the non-tenant/non-licensee cohabitant or former cohabitant may apply for an occupation order as a non-entitled applicant.[19]

Orders may only be made in respect of a property which the applicant and the cohabitant or former cohabitant live(d) together in or intended to live together in.

Non-tenant/non-licensee cohabitants and former cohabitants do not have a right to occupy unless they are successful in obtaining an occupation order.

Duration of orders

Orders can be made for a maximum of six months and the court may extend the order once only for a period of not more than six months.[20]

Declaratory provisions

If an order is made, it must contain one of the following declaratory provisions:

• that the applicant has the right not to be evicted or excluded from the home or any part of it for the duration of the order, and the other cohabitant or former cohabitant cannot evict or exclude the applicant,[21] or

• if the applicant is not in occupation, the right to enter and remain in occupation for the duration of the order and that the other cohabitant or former cohabitant must allow this[22]

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[23]

• exclude the other partner from all or part of the home[24]

• 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)[25]

• 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[26]

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.

The court can:

• impose obligations on either cohabitant to repair or maintain the home or to take responsibility for rent and other outgoings. This could temporarily end the sole tenant's/licensee's liability for rent and order that the non-tenant/non-licensee cohabitant or former cohabitant take on that liability[27]

• oblige the cohabitant or former cohabitant who remains in occupation to make payments to the other partner who has been excluded from all or part of the home.[28] This is sometimes known as an occupation rent and is intended as a compensation for the loss of the right to occupy[29]

• impose obligations regarding payment of the rent, eg this could transfer a tenant's liability for rent and order that the other party take on that liability. The liability ceases when the occupation order ends[30]

• make orders granting use of furniture and contents, and orders to take reasonable care of furniture, contents and the home generally[31]

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 Homelessness section and the Allocation of LA housing 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

• financial resources of each party

• likely effect of any order or the effect of not making an order, on the health, safety or well-being of the parties and of any relevant child

• conduct of the parties[32]

When deciding whether to make a declaratory order, the court must also consider:

• the nature of the parties' relationship (the court must have regard to the fact that the couple had not demonstrated the commitment involved in marriage)[33]

• the length of time during which they lived together as if they were husband and wife or civil partners

• whether there are any children of both parties or for whom both parties have parental responsibility

• the length of time since the parties ceased to live together

• any other proceedings pending under the Children Act[34]

For regulatory orders, the court must consider the matter separately and consider only the first four matters listed above.[35] The court must also look at the balance of harm. This means that it 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.[36] The court does not have to make an order, but can do so if it sees fit.

In some situations, neither cohabitant has a legal or contractual right to occupy their home, for example squatters, bare licensees (people sharing accommodation with parents, relatives or friends) and excluded tenants or licensees whose contracts have been ended.

For couples in this situation, both partners have the right to apply for occupation orders against each other as non-entitled applicants.[37] Former cohabitants can also apply.

If, however, the landlord wants the occupiers to leave, their right to achieve this is unaffected by the occupation order. In practice, the use of occupation orders where neither partner has a right to occupy is likely to be very limited, for example to allow someone to enter the family home to collect their belongings. This is because of the ease with which a landlord can evict bare licensees or excluded tenants or licensees whose contracts have been ended.

Orders can be made for a maximum of six months, and the court may extend the order once only for a period of not more than six months.[38] The court does not have to make an order.

Orders can:

• require the other partner to allow the applicant to enter and remain in the home

• regulate the occupation of the home by either or both partners

• require the other partner to leave all or part of the home

• exclude the other partner from a defined area, for example a street or an estate[39]

The court's criteria for making these occupation orders are the same as for occupation orders where the cohabitant is the tenant.[40]

The court must also look at the balance of harm. This means that it 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.[41]

The court does not have to make an order but can do so if it sees fit.