Occupation orders under Family Law Act 1996 for cohabiting joint owners

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 Family Law Act 1996. The main differences between the orders are:

• who can apply for them

• the length of time they may last

• the criteria the court must use

Where either joint owner cohabitant wishes to stay in her/his home, s/he can apply for an occupation order as an entitled applicant. As joint owners have rights of occupation under property law, in practice neither need apply unless there is a problem. However, either cohabitant may wish to get a regulatory order to oust the other partner or control her/his use of the property.[1]

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'.[2]

At the court's discretion, occupation orders can last:[3]

• indefinitely

• for a certain length of time

• until a specific event occurs, such as a divorce

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[4]:

• 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

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 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.

The test is applied in the following way:[5]

• 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

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, 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'.[6]

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

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

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

• both types of order

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.[7] They are used to:

• declare that the applicant is entitled to occupy[8]

• enforce the applicant's right of occupation[9]

• allow the applicant to enter the home if they are excluded[10]

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 ousters or exclusion orders).[11] Each partner may also apply for a regulatory order to:

• regulate the occupation of the dwelling by either or both of the parties[12]

• exclude the other partner from all or part of the home[13]

• 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)[14]

• 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[15]

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 partner who doesn't own the home takes on that liability.[16] The liability ceases when the occupation order ends[17]

• 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[18] 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[19]

• make orders granting use of furniture and contents, and orders to take reasonable care of furniture, contents and the home generally[20]

Where there has been a relationship breakdown and the former cohabitant is a joint owner, they may still apply for an occupation order as an entitled applicant.[21] The provisions are the same as for a joint owner cohabitant. When a court make such an occupation order, it can also order the partner remaining in the property to pay compensation, in the form of occupation rent, to the excluded joint owner.[22]In assessing the occupation rent payable by the partner remaining in occupation, the court must take account of their beneficial interest in the property and reduce the market rent value accordingly.[23]