Skip to main content
Shelter Logo
England

Occupation orders for joint homeowners

Occupation orders under the Family Law Act 1996 including declaratory and regulatory orders to control or restrict rights of a joint owner.

This content applies to England & Wales

Definition of occupation orders

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. 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 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, or

  • both types of order.

Declaratory orders

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 partner is arguing that the other partner has got to leave. Declaratory orders declare, extend or grant occupation rights.[1] They are used:

  • to declare that the applicant is entitled to occupy

  • to enforce the applicant's right of occupation

  • to allow re-entry to the home if excluded.

Regulatory orders

Either spouse or civil partner 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 ouster or exclusion orders).[2] They are used:

  • 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 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)

  • 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.

Occupation orders do not affect long-term rights of occupation, but grant the equivalent of long-term rights for as long as the order is in force.

Spouses and civil partners

Where the joint owners are married or in civil partnerships, both spouses or civil partners can apply for orders under the same section of the Act, because they are both owners. This also applies to former spouses or civil partners. Occupation orders are available for either spouse or civil partner where the couple are married, in a civil partnership, divorced or their civil partnership has been dissolved, as long as they remain joint owners.

If either married or civil partner joint owner wishes to stay in their home, they can apply for an occupation order. However, as joint owners have rights of occupation under property law, in practice neither need apply unless there is a problem. Nonetheless, either spouse or civil partner may still wish to get a regulatory order to oust the other partner or control their use of the property.[4]

Duration of orders

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

  • indefinitely, or

  • 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]

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[9]

  • to exclude the other partner from all or part of the home[10]

  • 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)[11]

  • 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.[12]

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 partner to repair or maintain the home or to take responsibility for its mortgage and other outgoings. This could temporarily end one joint owner's liability for the mortgage payments and order that the other joint owner take on that liability[13]

  • 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[14] 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[15]

  • make orders granting use of furniture and contents, and orders to take reasonable care of furniture, contents and the home generally.[16]

These provisions end when the occupation order ends.[17]

When can an order be granted

The court has the power to grant an occupation 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 financial resources of each party

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

  • the conduct of the parties.[18]

  • 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

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:

  • 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.[19]

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'.[20]

Former spouses and civil partners

Where there has been a divorce or dissolution of civil partnership and the former spouse or civil partner is a joint owner, they can still apply for an occupation order as an entitled applicant.[21] The provisions are the same as for a joint owner spouse or civil partner (see Spouses and civil partners, above).

When a court make 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]

Last updated: 26 February 2021

Footnotes

  • [1]

    s.33(3)(a) and (b) and s.33(4) Family Law Act 1996.

  • [2]

    s.33(3)(c),(d),(f) and (g) Family Law Act 1996.

  • [3]

    see for example, Re L (Children) [2012] EWCA Civ 721.

  • [4]

    s.33(1) Family Law Act 1996.

  • [5]

    s.33(10) Family Law Act 1996.

  • [6]

    s.33(4) Family Law Act 1996.

  • [7]

    s.33(3)(a) Family Law Act 1996.

  • [8]

    s.33(3)(b) Family Law Act 1996.

  • [9]

    s.33(3)(c) Family Law Act 1996.

  • [10]

    s.33(f) Family Law Act 1996.

  • [11]

    s.33(3)(d) Family Law Act 1996.

  • [12]

    s.33(3)(g) Family Law Act 1996.

  • [13]

    s.40(1)(a) Family Law Act 1996.

  • [14]

    s.40(1)(b) Family Law Act 1996.

  • [15]

    s.40(1)(a) Family Law Act 1996.

  • [16]

    s.40(1)(c)-(e) Family Law Act 1996.

  • [17]

    s.40(3) Family Law Act 1996.

  • [18]

    s.33(6) Family Law Act 1996.

  • [19]

    s.33(7) Family Law Act 1996.

  • [20]

    s.63(3) Family Law Act 1996.

  • [21]

    s.33 Family Law Act 1996; s.12 Trust of Land and Appointment of Trustees Act 1996.

  • [22]

    s.13(6)(a) Trust of Land and Appointment of Trustees Act 1996.

  • [23]

    Akhtar v Hussain [2012] EWCA Civ 1762.