Married and civil partner joint tenant occupation orders

Occupation orders that married joint tenants or licensees can apply for to enforce, declare or restrict rights to occupy the home after the breakup.

This content applies to England & Wales

Types of occupation order

Occupation orders can be granted under a number of different sections of the Family Law Act 1996.

Occupation orders are orders made by the courts to enforce, declare or restrict rights to occupy the matrimonial home. They are a short-term solution and will not affect what happens to the property in the final settlement.

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 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

  • 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 spouse is arguing that the other spouse has got to leave. Declaratory orders declare, extend or grant occupation rights. They 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 spouse or civil partner may also apply for a regulatory order, for example, to stop the other spouse from entering the home or to make them leave. Regulatory orders control or restrict existing rights. They were previously referred to as ousters or exclusion orders. Each spouse or civil partner may apply for the following regulatory orders, to:[2]

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

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

  • prohibit, suspend or restrict the other person's rights to occupy but not to terminate those rights permanently

  • 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 married or civil partner joint tenants and licensees, the right to apply for an occupation order will vary depending on whether the applicant has the right to occupy (entitled) or has no right to occupy (non-entitled). It does not make any difference whether they are married, in a civil partnership or divorced (entitled). There are different occupation orders depending on the situation.

Where the joint tenants are married, both spouses or civil partners are entitled applicants because they are both tenants. For the same reason, where the couple are divorced, separated, have had their civil partnership dissolved or have had their marriage annulled, then they are still both entitled applicants.

The situation is the same for joint licensees who occupy under a contract. Where they are married or in a civil partnership, both spouses or civil partners are entitled applicants because they are both licensees. Where the couple are divorced, separated, have had their civil partnership dissolved or have had their marriage annulled, then they are still both entitled applicants.

Where neither spouse or civil partner or former spouse or former civil 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.

Occupation orders where the spouses or civil partners are joint tenants/licensees

Occupation orders are available for either spouse or civil partner where the couple are married or divorced, in a civil partnership or have had their civil partnership dissolved.

Where either joint tenant/licensee wishes to stay in the matrimonial home, they can apply for an occupation order as an entitled applicant.[3] As joint tenants or licensees have rights of occupation under housing law, in practice neither need apply unless there is a problem. Either spouse or civil partner may 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:[5]

  • indefinitely

  • for a certain length of time

  • until a specific event occurs, such as a divorce

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.

The court can order:

  • either spouse or civil partner to repair or maintain the home or to take responsibility for its rent and other outgoings[6]

  • the spouse or civil partner who remains in occupation to make payments to the spouse or civil partner who has been excluded from all or part of the home[7] as compensation for the loss of the right to occupy[8]

  • payment of the rent to cease when the occupation order ends[9]

  • one party to have use of furniture and contents

  • parties to take reasonable care of furniture, contents and the home generally[10]

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:[11]

  • 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.[12]

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

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 court considers whether there is significant harm to the applicant or any relevant child. If there is, it must make an order, unless both the:[13]

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

  • 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'.[14]

Occupation orders for former spouses and civil partners

Where there has been a divorce or dissolution and the former spouse or civil partner is a joint tenant/licensee, they can still apply for an occupation order as an entitled applicant.[15] The provisions are the same as for a joint tenant/licensee spouse or civil partner.

Occupation orders where no right to occupy

In some situations, neither spouse or civil partner has a legal or contractual right to occupy their matrimonial 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 spouses or civil partners have the right to apply for occupation orders against each other as non-entitled applicants.[16] Former spouses or civil partners 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 spouse or civil 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 the landlord can easily 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 on one or more occasions for further specified periods of not more than six months.[17]

Orders can:[18]

  • require the other spouse or civil partner to allow the applicant to enter and remain in the home

  • regulate the occupation of the home by either or both spouses or civil partners

  • require the other spouse or civil partner to leave all or part of the home

  • exclude the other spouse or civil partner from a defined area, for example a street or an estate

Circumstances in which an occupation order can be granted

The court's criteria for making these occupation orders are the same as for occupation orders where the spouses or civil partners are joint tenants/licensees.[19]

Last updated: 26 February 2021

Footnotes

  • [1]

    s.33 Family Law Act 1996.

  • [2]

    s.33 Family Law Act 1996.

  • [3]

    s.33 Family Law Act 1996.

  • [4]

    s.33(1) Family Law Act 1996.

  • [5]

    s.33(10) Family Law Act 1996.

  • [6]

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

  • [7]

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

  • [8]

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

  • [9]

    s.40(3) Family Law Act 1996.

  • [10]

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

  • [11]

    Guerroudj v Rymaczyk [2015] EWCA Civ 743.

  • [12]

    s.33(6) Family Law Act 1996.

  • [13]

    s.33(7) Family Law Act 1996.

  • [14]

    s.63(3) Family Law Act 1996.

  • [15]

    s.33 Family Law Act 1996.

  • [16]

    s.37(2) Family Law Act 1996.

  • [17]

    s.37(5) Family Law Act 1996.

  • [18]

    s.37(3) Family Law Act 1996.

  • [19]

    s.37(4) Family Law Act 1996.