In addition to a Non Molestation Order an Occupation Order may be necessary. A Non Molestation Order deals with the ill treatment but does not cover the occupation of the family home. An Occupation Order may exclude the perpetrator from their own home.
The effect of an Occupation Order
In many cases this will exclude the perpetrator from the family home other Orders are possible as well. The Order may allow the applicant to remain in occupation e.g. where the other party has tried to throw them out.
- Regulate the occupation of the family home;
- Restrict the right to occupy;
- Exclude the perpetrator from a part of the family home;
The Occupation Order itself
In some cases the person applying will have a legal right to occupy. Such as being a part owner on a tenancy. In this case the Court would look at the balance of harm against the applicant or their child if the Order is not made. If the applicant can show that she will suffer from ill treatment or impairment of health if the Order is not made the Court will make the Order. Even if she cannot show this the Court still has a discretion to make an Occupation Order.
The Court will consider the housing needs and resources of both parties, their financial resources, the effect on the children and the conduct of the parties.
How long will an Order last?
An Occupation Order can be for a specified period or until a particular event occurs or until further notice. The reality on the ground is Orders tend to be short, just giving time for the parties to sort out accommodation.
What kind of Order can be made where the applicant has legal rights?
A variety of Orders can be made such as
- enforcing a right to remain in occupation but not the other person
- allow the applicant to enter the home or part of the home
- regulate the occupation of the home
- prohibit, suspend or restrict exercise of the family home
Order where the formal spouse or civil partner does not have a right to occupy
An Occupation Order can still be made even where the applicant does not have a legal right. This will apply if it was the matrimonial home or intended matrimonial home or partnership home for civil partners. An Order of this nature will provide the partner who does not have a legal right to occupy with a right not to be evicted or excluded.
The Court will take into account factors including the housing needs of the parties, the financial resources, the impact on the child and the conduct of the parties, the length of time they have ceased living together and/or the end of the marriage or partnership. The Court would also consider the state of proceedings between the parties.
The balance of harm between the parties and a relevant child will be considered.
An Order would usually be for a specific period up to 6 months but may be extended to a maximum of 6 months on each occasion.
Order available where one cohabitee has no existing right to occupy but the other does
An Order can be made taking into account the following:
- Housing needs and resources of the parties;
- Financial resources of the parties;
- Effect on the child;
- The parties’ conduct;
- The nature of the relationship and level of commitment;
- Length of time of cohabitation;
- The children of each of the parties and who they have parental responsibility for;
- Length of time since they started to live apart;
- Any legal proceedings.
Again the Court will consider the harm to each of the parties and a relevant child and balance this.
Orders where neither party has right to occupy
Orders of this nature are very rare but available to the Court. Again, a balancing of the harm between the parties and the relevant child is carried out.
Again, Orders of this nature can be for a period not exceeding 6 months but extendable for another period of 6 months.
In addition to the main Occupation Order the Court can add certain requirements.
- Repair and maintenance;
- Payment of rent, mortgage or other related outgoings;
- An Order to make periodic payments in a case where the party is entitled to occupy part of the home;
- Possession of furniture or other contents;
- An Order to take reasonable care of furniture and contents;
- To take reasonable steps to secure furniture and other contents.
In making an Order of this nature the Court will consider the financial needs and resources of the parties and their financial obligations.
Unfortunately, case law has thrown doubt on the enforceability of Orders of this nature. However, they may be of some value in setting out the responsibilities of the relevant party.
Transfer of tenancies
It should be noted that the Court also has power in certain circumstances to transfer tenancies held by spouses, civil partners or former spouses civil partners or cohabitants.