The effect of an occupation order can be devastating for respondents and a gross interference in their property rights. For applicants and their children, the security of an occupation order can be vital for their safety and wellbeing. Such applications are very serious, and they deserve the same level of care and attention that applications for financial remedies and orders in respect of children receive.

Many of these applications are made at the start of the separation process, often in response to a particular incident between the parties, and there can be an urgent need to secure orders to safeguard applicants and/or their children. This urgency can lead to important steps not being taken at an early stage which might affect the success of the application.

This short article considers a few key points which are worth addressing at the outset of the application process. I have assumed that the application being considered is made under s33 FLA 1996 (where the applicant has the right to occupy or has home rights and the property is/was their home or was intended to be their home with the respondent).

1. There are two ways in which the order can be made;

the mandatory test under s33(7) and the discretionary test under s33(6)

Chalmers v Johns [1999] 1 FLR 392 established that the court must first consider the balance of harm test in s33(7) FLA 1996 and if that test is satisfied in favour of the applicant or any relevant child the court shall make the occupation order. However, if the evidence does not support an order being made under s33(7) the court will then consider the discretionary regime in 33(6) and may make an occupation order. Both tests are set out in full at the end of this article.

Many applications focus on allegations of harm and do not deal with the circumstances set out in s33(6). The best way to deal with an application for an occupation order is to set out the evidence which will satisfy both tests. If the Judge is not with you on the allegations of harm you can rely on the court’s discretionary power to seek an order.

2. The court needs financial information to assess the affordability of the proposals

In order to establish that an order should be made under s33(6) the statement in support should set out the financial information required in that subsection. The court will struggle to make orders without any details of the parties’ income/savings/outgoings, costs of running the property or costs of renting nearby.

The statement should set out the affordability of what is being proposed. If the applicant has no income and the respondent is not in a position to fund a rental property and maintain the outgoings on the family home then the applicant may need to reconsider what is being sought.

3. Applicants may not secure an occupation order until a final hearing and will need to consider what interim arrangements can be put in place

Unless the balance of harm test is plainly made out or the respondent agrees to vacate the property the court is unlikely to make an order without notice to the respondent, or at the first directions hearing if the application is contested. Many applicants find the court’s refusal to make orders distressing and then struggle to think about what they would like to happen in the interim.

One option for an interim measure is to invite the court to make an order which regulates the occupation of the property. Judges are often prepared to be creative about this and will be open to proposals for rota systems (regulating the use of the kitchen/bathroom/living room) or dividing up the house (if it is large enough) to give the parties their own space and to reduce the opportunity for conflict. It may be better to have a regulation order in place than no order at all.

4. Consider the urgency of the application

If the application is urgent there will be limited time to prepare and important information may not be made available for the court (police/local authority disclosure, evidence of financial information, medical evidence etc). If the respondent is already out of the property that takes the urgency out of the situation. The respondent may have bail conditions not to attend the property, a restraining order, or a DVPN/DVPO. These will be time limited and it is important to know when they expire. An applicant may have sufficient protection under a DVPO for the next 28 days which allows time for the application to be properly prepared with evidence in support.

5. Ancillary orders may be necessary to make the arrangements work

An applicant may not be able to afford the mortgage and other running costs of the property if the respondent moves out and refuses to make those payments. This can be incredibly stressful for the applicant and may lead to financial hardship and the risk of repossession of the property.

S40 FLA 1996 contains a list of additional provisions that can be included in an occupation order to provide some financial security, such as obligations to:

  • Repair and maintain the property
  • Pay the rent, mortgage or other outgoings
  • Make periodical payments in respect of the accommodation

In order to make any of these orders the court will require evidence of the parties’ financial needs, resources and obligations so it is important to provide as much evidence as possible in relation to both parties.

Section 33(7) and s33(6) of the Family Law Act 1996

Section 33(7):
‘If it appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if an order under this section containing one or more of the provisions mentioned in subsection (3) is not made, the court shall make the order unless it appears to the court that –

  • the respondent or any relevant child is likely to suffer significant harm if the order is made; and
  • the harm likely to be suffered by the respondent or the child in that event is as great as, or greater than, the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made.’

Section 33(6):
‘In deciding whether to exercise its powers under subsection (3) and (if so) in what manner, the court shall have regard to all the circumstances including –

  • the housing needs and housing resources of each of the parties and of any relevant child;
  • the financial resources of each of the parties;
  • the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3) on the health, safety or well-being of the parties and of any relevant child; and
  • the conduct of the parties in relation to each other and otherwise.’
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