Occupation order: what you need to know « McAlister Family Law

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Occupation order: what you need to know

Aaron Williams

11.05.2020

As we continue the lock down due to the COVID-19 pandemic, some people are having to socially isolate at home with partners and spouses, 24/7. For some, they are stuck in a property with an abusive partner: they wish to know what protections are available for them if they are subjected to abuse.

Under Section 33 and 35 to 38 of the Family Law Act 1996, the court have powers to make a protective order known as an occupation order.  An occupation order grants the person making the application the right to occupy a dwelling house; the content of such an order specifically defines who should or should not reside in all or part of the home. The order can also extend to exclude people from entering an area around the home, if there is a concern that person will turn up at the door to cause trouble. Such an order can also cover practical day-to-day matters, such as who bears the responsibility for payment of rent or mortgages on the property, and whether the occupying party should pay a rent to the other person.

Given the draconian nature of these orders, they can only be applied for by applicants who are ‘associated’ with the respondent (the person the order is made against).  For the sake of clarity, associated peoples must fall under one of the following categories:

  • they are, were or are intended to be married to each other
  • they are, were or are intended to be civil partners to each other
  • they are or were cohabitants
  • they live or have lived in the same household in a familiar relationship
  • they are relatives
  • they have or have had an intimate relationship for a significant duration with each other
  • in relation to a child, they are either a parent of the child or have had parental responsibility for the child.

After establishing that you are an associated person an application needs to be made under the relevant section of the Family Law Act 1996.  The qualifying criteria are as follows:

  1. Section 33, the applicant has a stake or interest or so on and has home rights in the property
  2. Section 35, one former spouse or former civil partner with no existing right to occupy
  3. Section 36, one cohabitant or former cohabitant with no existing right to occupy
  4. Section 37, neither spouse nor civil partner entitled to occupy
  5. Section 38, neither cohabitant nor former cohabitant entitled to occupy.

After establishing which section of the Family Law Act 1996 the application is made under, the key factors that the court must consider before making an Occupation Order are known as the balance of harm test and the core criteria test.

Balance of harm test

The balance of harm test sets out a duty to the court to determine what harm would be caused to the applicant, the respondent and any relevant children if the occupation order was made or not. 

When considering the balance of harm the court must make an order if it appears that the applicant or any child is likely to suffer significant harm attributable to the conduct of the ‘associated person’ if the order is not made.

Core criteria test

After the court has established their deliberation on the balance of harm, the court must consider the core criteria test, having regard to all the circumstances, this can include, but is not limited to the following considerations:

  1. the housing needs and housing resources of each of the parties and any relevant child
  2. the financial resources of each of the parties
  3. the likely effect of any order, or of any decision by the court not to exercise its powers to make an order and the health, safety or wellbeing of the parties or of any relevant child, and
  4. the conduct of the parties in relation to each other and otherwise.

As the courts are determining whether to deprive the ‘associated person’ of their right to remain within their own home, the court will only make such an order in exceptional circumstances (therefore if you have fallen out over who gets to watch the television whilst in isolation, this will not cut it). 

When the application is issued and the court is satisfied that the respondent has used or threatened violence against the applicant or a relevant child, a power of arrest can be attached if the court is satisfied that the applicant or child would not be adequately protected without it.

Should an order be made with a power of arrest attached to it, a copy of the order can be filed with the local police station to ensure that the order can be enforced should the respondent breach it.

In terms of the duration of the order, it is dependent on which section of the Family Law Act 1996 the application is brought under, but an occupation order is typically made for a maximum of six months pending further review from the court.

 

If you are concerned about the conduct of an associated person sharing a property with you and you wish to discuss what protective measures can be put in place for you, please do not hesitate to contact us on 0161 507 7145.

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