Occupation orders under Family Law Act 1996 for married sole tenants

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

Main differences between the orders

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 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:

• declare that the applicant is entitled to occupy or has matrimonial home rights[1]

• enforce the applicant's right of occupation[2]

• allow re-entry to the home if excluded[3]

• make an order during the marriage or civil partnership that matrimonial home rights will not be brought to an end either by the death of the spouse or civil partner or by termination of the marriage or civil partnership, ie they will extend beyond divorce[4]

Regulatory orders

Either spouse or civil partner may apply for a regulatory order, for example to stop the other spouse from entering the home or to make her/him 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:

• regulate the occupation of the dwelling by either or both of the parties[5]

• exclude the other spouse or civil partner from all or part of the home[6]

• restrict or terminate the matrimonial right to occupy of a non-tenant partner.[7] The court can permanently end a non-tenant partner's matrimonial home rights as well as temporarily withdrawing them. A permanent order would normally only be made together with the final settlement of the home upon divorce, judicial separation or nullity, to resolve an impasse

• prohibit, suspend or restrict the other person's rights to occupy.[8] Unlike matrimonial home rights, 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[9]

For married or civil partner sole tenants, the right to apply for an occupation order will vary depending on whether the applicant has the right to occupy (entitled) or no right to occupy (non-entitled), and on the relationship between the partners, eg whether they are still married or in a civil partnership. There are different occupation orders depending on the situation.

Where the sole tenant is married or in a civil partnership, both spouses are entitled applicants because one is the tenant and one has matrimonial home rights. Where the couple are divorced, separated, had their civil partnership dissolved or have had their marriage annulled, then the tenant will be an entitled applicant and the non-tenant partner or former spouse will be a non-entitled applicant.

This situation is the same for sole licensees who occupy under a contract. Where they are married or in a civil partnership, both spouses/partners are entitled applicants because one is the licensee and one has matrimonial home rights. Where the couple are divorced, separated, have had their marriage annulled or civil partnership dissolved or annulled, then the licensee will be an entitled applicant and the non-licensee partner or former spouse/partner will be a non-entitled applicant.

Where neither spouse nor 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.

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

• indefinitely

• for a certain length of time

• until a specific event occurs, such as a divorce[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 spouse or civil partner to repair or maintain the home or to take responsibility for rent and other outgoings. This could temporarily end the sole tenant's/licensee's liability for rent and order that the non-tenant/non-licensee partner take on that liability[11]

• oblige the spouse or civil partner who remains in occupation to make payments to the other spouse or civil partner who has been excluded from all or part of the home.[12] This is sometimes known as an occupation rent and is intended as a compensation for the loss of the right to occupy[13]

• impose obligations regarding payment of the rent, eg this could transfer a tenant's/licensee's liability for rent and order that the other party take on that liability. The liability ceases when the occupation order ends[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 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

• 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 well-being of the parties and of any relevant child

• the conduct of the parties[16]

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'.

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:

• 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[17]

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'.[18]

The criteria for former spouses and civil partners applying for an occupation order depend on whether they were previously a tenant/licensee or a non-tenant/licensee.

Tenant/licensee former spouses and civil partners

Where there has been a divorce or dissolution and the former spouse or civil partner is the tenant/licensee, they may still apply for an occupation order as an entitled applicant.[19] The provisions are the same as for a tenant/licensee partner.

Non-tenant/non-licensee former spouses and civil partners

Former spouses and civil partners who are not tenants/licensees have the right to apply for an occupation order where the other former spouse or civil partner is the tenant/licensee of their matrimonial home,[20] but these orders are different to those available to tenants/licensees and their spouses and civil partners. Non-tenant/non-licensee former partners do not have an automatic right to occupy unless they have obtained an occupation order or had their occupation rights extended before the end of the marriage.[21]

Duration and effect of orders for non-tenant/licensee former spouse or civil partner

Occupation orders for non-tenant/non-licensee former spouses or civil partners cannot be made for longer than six months initially, but the court can extend them once or several times for further specified periods of not more than six months. While the occupation order is in force, the person given the right to occupy has the right to pay rent, occupy as if they are the spouse or civil partner, and intervene in possession proceedings, ie has (matrimonial) home rights.[22]

Provisions the court can attach

If an order is made, it must contain one of the following declaratory provisions, that either:

• 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 that the other former spouse or former civil partner cannot evict or exclude 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 former spouse or former civil partner to allow this[24]

In addition, the court may attach further regulatory provisions to the order, as for tenant/licensee partners and non-tenant/non-licensee partners (entitled applicants).[25] The court may also attach the same provisions concerning occupation rent, liabilities etc.

Circumstances in which an occupation order can be granted

In considering whether or not to grant the order, the court must use the same basic criteria as for spouses. However, there are additional criteria for former spouses.

For declaratory orders, the court must also consider:

• the length of time since the parties stopped living together

• the length of time since the marriage or civil partnership was dissolved or annulled

• any other proceedings that are pending, eg for a property adjustment order or a Children Act transfer

For regulatory orders, the court must also consider whether there is any risk of significant harm to the applicant or children. If so, it must include a restriction or exclusion provision, unless the balance of harm suffered by the other party or any children is likely to be as great or greater.

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.[26] Former spouses or civil partners can also apply.

If, however, 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 of the ease with which a landlord can evict a bare licensee or an excluded tenant or licensee whose contract has 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.[27] Orders can:

• 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[28]

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 one tenant/licensee is the spouse or civil partner.