Occupation orders for sole owners and their married or civil partners

If a couple cannot agree what to do with a property following a relationship breakdown, they will have to apply to the court to resolve the situation. In the short term, the court can make an occupation order under the Family Law Act 1996 setting out, for example, who can live at the property or ordering one of the spouses or civil partners to leave.

Occupation orders are orders made by the courts to enforce, declare or restrict rights to occupy the matrimonial 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

• 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

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

• declare that the applicant is entitled to occupy or has matrimonial home rights

• enforce the applicant's right of occupation

• allow re-entry to the home if excluded

• make an order during the marriage or civil partnership that matrimonial home rights will not be brought to an end either by the death of the spouse or civil partner, or by termination of the marriage or civil partnership, ie the rights will extend beyond divorce or dissolution of civil partnership

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

Each partner may apply for the following regulatory orders:

• 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 restrict or terminate the matrimonial right to occupy of the spouse or civil partner who doesn't own the home. The court can permanently end the spouse or civil partner matrimonial home rights as well as temporarily withdrawing them. A permanent order would normally only be made together with the final settlement of the home upon divorce, dissolution of civil partnership order, judicial separation or nullity, to resolve an impasse to prohibit, suspend or restrict the other person's rights to occupy. Unlike matrimonial home rights, the court has no power to completely terminate these rights, only to suspend them. In practice, the sole owner's rights under family law cannot be terminated unless, in the long term, ownership is transferred by the court

• 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

Where there is a married sole owner or civil partner, the right to apply for an occupation order will vary depending on whether the applicant has the right to occupy (entitled), no right to occupy (non-entitled) and on the relationship between the partners, ie whether they are still married. There are different occupation orders depending on the situation.

Where the sole owner or civil partner is married, both partners are entitled applicants because one is the owner and the other has 'home rights' (formerly 'matrimonial home rights') to occupy. Where the couple are divorced, or their civil partnership has been dissolved, or where they have separated or have had their marriage annulled, then the sole owner will be an entitled applicant and their spouse or former spouse or civil partner or former civil partner will be a non-entitled applicant.

These occupation orders are available for either spouse or civil partner where the couple are married or in a civil partnership and one partner is the sole owner. Where the couple are divorced or their civil partnership has been dissolved, they are only available to the sole owner.

Where either the sole owner or the spouse or civil partner who doesn't own the home wishes to stay in the matrimonial home, they can apply for an occupation order as an entitled applicant.[4] As the sole owner has rights to occupy under property law and their spouse or civil partner has home rights, in practice neither need apply unless there is a problem. However, either spouse may wish to get a regulatory order to oust the other partner or control their use of the property.

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, such as a divorce[5]

Declaratory provisions

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

• to declare that the applicant is entitled to occupy[6]

• to enforce the applicant's right of occupation[7]

• to allow the applicant to enter the home if they are excluded[8]

• to make an order during the marriage that home rights will not be brought to an end either

• by the death of the spouse or civil partner or by termination of the marriage or dissolution of the civil partnership, ie they will extend beyond divorce[9]

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[10]

• to exclude the other partner from all or part of the home[11]

• to restrict or terminate the home right to occupy of a spouse or civil partner who doesn't own the home partner[12]

• 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)[13]

• 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[14]

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 spouse to repair or maintain the home or to take responsibility for its mortgage and other outgoings. This could end temporarily the sole owner's liability for the mortgage payments and order that their spouse or civil partner take on that liability[15]

• oblige the spouse or civil partner who remains in occupation to make payments to the other spouse or civil partner who has been excluded from all or part of the home.[16] 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[17]

• make orders granting use of furniture and contents, and orders to take reasonable care of furniture, contents and the home generally[18]

These provisions end when the occupation order ends.[19]

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 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 Allocation of social housing and Homelessness for further information). 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 well-being of the parties and of any relevant child

• the conduct of the parties[20]

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

The court has to look at the 'balance of harm'. 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[21]

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'.[22]

Where there has been a divorce or dissolution of the civil partnership and the former spouse or civil partner is the owner, they may still apply for an occupation order as an entitled applicant.[23] The provisions are the same as for an owner spouse or civil partner (see occupation orders where one spouse or civil partner is the sole owner, above).

Former spouses or civil partners who are not owners may apply for occupation orders as non-entitled applicants where the other former spouse or civil partner is entitled to occupy because s/he is the owner.[24] Former spouses or civil partners who are not owners do not have an automatic right to occupy unless they have obtained an occupation order or had their occupation rights extended before the end of the marriage or dissolution of the civil partnership.[25]

Duration and effect of orders

Occupation orders for former spouses or civil partners who are not owners cannot be made for longer than six months initially, but the court can extend them once or several times for further specified periods of not more than six months. While the occupation order is in force, the person given the right to occupy has the right to pay the mortgage, occupy as if they were the spouse or civil partner, and intervene in possession proceedings – ie they have home rights.[26]

Provisions the court can attach

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

• the applicant has the right not to be excluded from the house or any part of it for the duration of the order, and that the other former spouse cannot exclude the applicant[27]

• if the applicant is not in occupation, the right to enter and remain in occupation for the duration of the order and requiring the other former spouse to allow this[28]

In addition, the court may attach further regulatory provisions to the order, in the same way as for sole owner spouses or civil partners and spouses or civil partners who don't own the home (entitled applicants) (see occupation orders where one spouse or civil partner is the sole owner, above).[29] The court may also attach the same provisions concerning occupation rent, liabilities etc.

Circumstances in which an occupation order can be granted

In considering whether or not to grant the order, the court must use the same basic criteria as for spouses or civil partners (see occupation orders where one spouse or civil partner is the sole owner, above). However, there are additional criteria for former spouses or civil partners.

For declaratory orders, the court must also consider:

• the length of time since the parties stopped living together

• the length of time since the marriage or civil partnership was dissolved or annulled any other proceedings pending, eg for a property adjustment order or a Children Act transfer

For regulatory orders, the same basic criteria apply as for entitled applicants (see occupation orders where one spouse or civil partner is the sole owner, above), but the court must also consider whether there is any risk of significant harm to the applicant or children. If so, it must include a restriction or exclusion provision unless the balance of harm suffered by the other party or any children is likely to be as great or greater (see balance of harm test, above).