Occupation orders for joint tenants

Resolving disputes between cohabiting joint tenants and licensees by applying for occupation orders to enforce or restrict rights to occupy the home.

This content applies to England & Wales

Resolving occupation disputes

It may not be possible for a couple to live together, or one partner might refuse to allow the other to occupy the property. Family mediation can help the couple resolve disputes about children or financial matters away from the courts.

For more information see Gov.uk – Money and property when a relationship ends.

A couple who cannot agree will have to apply to the court to resolve the situation.

In the long term a joint tenant may take action to alter the tenancy position without involving the courts under housing law, or the court may transfer a tenancy under matrimonial or family law. In the short term, the court can make an occupation order under the Family Law Act 1996 setting out who can live at the property or ordering one of the joint tenant cohabitants to leave. Occupation orders are available to joint tenants, joint licensees and their partners.

Occupation orders under the Family Law Act 1996

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.

Differences between orders

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 of 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.

Declaratory orders are used are used to:[1]

  • declare that the applicant is entitled to occupy

  • enforce the applicant's right of occupation

  • allow re-entry to the home if excluded

Regulatory orders

Either cohabitant may also 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).

Each partner may also apply for regulatory orders to:[2]

  • regulate the occupation of the dwelling by either or both of the parties

  • exclude the other partner from all or part of the home

  • 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)

  • 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

Eligibility to apply for occupation orders

For cohabiting joint tenants and licensees, the right to apply for an occupation order will vary depending on whether the applicant has a right to occupy (entitled) or has no right to occupy (non-entitled).

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, 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'.[3] There are different occupation orders depending on the situation.

Where the joint tenants are cohabitants or former cohabitants, both cohabitants are entitled applicants because they are both tenants.

The situation is the same for joint licensees who occupy under a contract. Where the joint licensees are cohabitants or former cohabitants, both cohabitants are entitled applicants because they are both licensees.

Where neither partner has a right to occupy, both will be 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.

Duration of occupation orders

At the court's discretion, occupation orders can last:[4]

  • indefinitely

  • for a certain length of time

  • until a specific event occurs

Other provisions the court can attach

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

The court has the power to:[5]

  • impose obligations on either partner to repair or maintain the home or to take responsibility for rent and other outgoings

  • 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

  • impose obligations regarding payment of the rent, eg this could transfer one joint tenant's/licensee's liability for rent and order that the other tenant/licensee take on that liability

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

Circumstances in which an 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.

The court must have regard to all the circumstances of the case, including the:[6]

  • housing needs and housing resources of each of the parties and any relevant child

  • 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

Housing resources include whether either party would qualify for rehousing under homelessness or allocations legislation.[7]

A relevant child is defined as a child who lives with or could be expected to live with either party. This includes 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.

Occupation orders can 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 court considers whether there is significant harm to the applicant or any relevant child. If there is, it must make an order, unless the:[8]

  • other party or any relevant child is likely to suffer significant harm if the order is made, and

  • 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 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'.[9]

No right to occupy

In some situations, neither cohabitant has a legal or contractual right to occupy their home, ie squatters, bare licensees (people sharing accommodation with parents, relatives or friends) and excluded tenants or licensees whose contracts have been ended. In this situation, both partners have the right to apply for occupation orders against each other as non-entitled applicants.[10] Former cohabitants can also apply.

If 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 matrimonial 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.

Duration and effect of orders

Orders can be made for a maximum of six months, and the court may extend the order once only for a further specified period of not more than six months.[11]

Orders can:[12]

  • 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

Circumstances in which an order can be granted

The court's criteria for making these occupation orders are the same as for occupation orders where the cohabitants are joint tenants.[13]

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.[14]

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

Last updated: 14 April 2021

Footnotes

  • [1]

    s.33 Family Law Act 1996.

  • [2]

    s.33 Family Law Act 1996.

  • [3]

    s.62(1)(a) Family Law Act 1996; para 13, Sch.9 Civil Partnership Act 2004.

  • [4]

    s.33(10) Family Law Act 1996.

  • [5]

    s.40 Family Law Act 1996

  • [6]

    s.33(6) Family Law Act 1996.

  • [7]

    Guerroudj v Rymaczyk [2015] EWCA Civ 743

  • [8]

    s.33(7) Family Law Act 1996.

  • [9]

    s.63(3) Family Law Act 1996.

  • [10]

    s.38(2) Family Law Act 1996.

  • [11]

    s.38(6) Family Law Act 1996.

  • [12]

    s.38(3) Family Law Act 1996.

  • [13]

    s.38(4) Family Law Act 1996.

  • [14]

    s.38(5) Family Law Act 1996.