Occupation orders if one partner is the sole owner

Occupation orders are orders made by the courts to enforce, declare or restrict rights to occupy the home. They are a short-term solution and will not affect what happens to the property in the final settlement. However they grant the equivalent of long-term rights for as long as the order is in force. This includes the right to pay the mortgage and the right to intervene in possession proceedings.

Occupation orders can be granted under a number of different sections of the Family Law 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, an order that declares, extends or grants the right to occupy

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

• both types or order

Occupation orders are available to sole owners and their cohabitants who don't own the home who have a beneficial interest or other rights to occupy (entitled applicants).[1] They are also available to cohabitants with no right to occupy (non-entitled applicants). 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'. There are different occupation orders depending on the situation.

Sole owners

Sole owners are always able to apply for occupation orders because of their ownership of the property (they are 'entitled' applicants). The orders can be applied for against anyone who is 'associated' with them according to the Act. This includes cohabitants and former cohabitants and anyone who has lived with them.

Non-owning cohabitants

For cohabitants who don't own the home, eligibility to apply for occupation orders will depend on the nature of their relationship with the owner of the property and whether or not the partner has established a beneficial interest. Cohabitants and former cohabitants can always apply for an order, but the type of order will depend on whether they have an established beneficial interest. Cohabitants and former cohabitants with an established beneficial interest will apply for the same type of order as an owner would (they will be 'entitled' applicants[2]). Where the beneficial interest is not finally established or there is no beneficial interest, they can apply for other types of orders as 'non-entitled' applicants.

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

• indefinitely

• for a certain length of time, or

• until a specific event occurs[3]

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 they are excluded[6]

In addition, the court may attach further regulatory provisions to:

• regulate the occupation of the dwelling by either or both of the parties[7]

• exclude the other partner from all or part of the home[8]

• 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]

• 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]

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.[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]

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[16]:

• 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:[17]

• 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'.[18]

Where the other cohabitant or former cohabitant is the sole owner, the cohabitant or former cohabitant who doesn't own the home or who does not have a beneficial interest may apply for an occupation order as a non-entitled applicant.[19] Orders may only be made in respect of a property that the applicant and the former cohabitant live(d) together in or intended to live together in.[20]

Cohabitants and former cohabitants who don't own the home and are without a beneficial interest do not have a right to occupy unless they are successful in obtaining an occupation order. A cohabitant who doesn't own the home can also apply for an occupation order as a non-entitled applicant where a beneficial interest probably exists but has not yet been established. This will not prevent them from applying subsequently for an occupation order as an entitled applicant with an established beneficial interest,[21] and this may be appropriate where a longer term order is sought.

Duration of orders

Orders can be made for a maximum of six months initially, and the court may extend the order once only for a period of not more than six months.[22]

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 is prohibited from evicting or excluding the applicant,[23]

• 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 cohabitant or former cohabitant to allow this[24]

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[25]

• exclude the other partner from all or part of the home[26]

• 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)[27]

• 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[28]

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)[29]

• the length of time during which they lived together as husband and wife

• 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 or relating to beneficial interests[30]

For regulatory orders, the court must consider the matter separately and consider only the first four matters listed above (all the circumstances including housing needs and resources, financial resources, the likely effect of an order on the health, safety or well-being of all parties and the conduct of the parties).[31] 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.[32]