Occupation Injunction Orders

An occupation order (OO) allows the courts to regulate the occupation of a property. This might be to declare rights of occupation or confirm how each party lives in it together, but it is typically used by one party in a relationship to terminate or prohibit the occupation rights of the other by excluding them from the property and or an area around it. The following matters are relevant:-

1. Applications are made under the Family Law Act ("FLA") 1996, sections 33, 35, 36, 37 & 38.

2. The exact orders sought, criteria for making them and the duration of any orders depends on which section applies. This depends on the parties right of occupation and the nature of their relationship.

3. Whichever section applies, the parties must be associated” (1), have occupied the property or (s33, 35 + s36) intended to do so as their home and the property must be as defined in the FLA. (2).

4. In terms of the relevant sections:-

   1. section 33 applies where the applicant  is  entitled  to occupy the property regardless of whether the  respondent is.

   2. section 35 applies where the applicant  is  not entitled  to occupy the property but the respondent is and the parties are former spouses or former civil partners.

   3. section 36 applies where the applicant  is  not entitled  to occupy the property but the respondent is and the parties are cohabitants or former cohabitants.

   4. section 37 applies where neither party is entitled to occupy the property and the parties are spouses or former spouses.

   5. section 38 applies where neither party is entitled to occupy the property and the parties are cohabitants or former cohabitants.

5. Section 33 is the most common application and the rest of this article will concentrate on that.

6. The criteria for making any order under section 33 is set out at 33 (6) and (7) FLA 1996.

7. Under section 33(7) the court is obliged to make an order where they consider a party or relevant child is likely to suffer significant harm from the respondent’s conduct unless the respondent or relevant child is likely to suffer the same or greater harm if an order is made.

8. Section 33 (6) otherwise gives the court discretion to make an order after considering all the circumstances, including, essentially, the housing needs of the parties and children, the parties housing and financial resources, conduct and the likely effect of any Order or no order being made on the parties /children.

9. Section 40 enables orders to be made regarding household outgoings, repairs and the grant or preservation of household contents, taking into account all the circumstances, including the parties financial needs, resources and obligations.

10. Section 47 (2) states the court shall attach a power of arrest if satisfied the respondent has used or threatened violence unless satisfied the applicant or child would otherwise be protected.

11. Case law provides guidance on some important points i.e.: -

    1. section 33 (7) must be considered first (3)

    2. an exclusion order is draconian and should only be made in “exceptional circumstances” under s33(6) (3) However, this does not mean it is limited to violence or threats of violence. (4)

    3. the order is referenced to the respondent’ s conduct but it does not have to be intentional (3),

12. s63 (1) confirms that where an adult applicant is concerned, harm means ill-treatment or the impairment of health, physical or mental, with this extending, with children, to the impairment of development (physical, emotional, behavioural etc) including from them seeing or hearing the ill treatment of another.

13. In practice therefore, with a greater awareness these days of abuse (see the non molestation blog) and the impact there can be on children in particular, on relationship breakdown, meeting the "exceptional circumstances" bar may not be as high as it looks. It will always depend on the circumstances. When balancing these, it was noted in the case of Grubb and Grubb (2009) EWCA Civ 976 that an "occupation order is likely to carry its greatest level of seriousness when it is made against a spouse to whom alternative accommodation is not readily available".

14. There are no limits on the duration of any order under section 33 but they often fall in line with non molestation orders, if granted i.e. 6 to 12 months or they may be for such duration as it takes to resolve matters on a long term basis i.e. maybe in a divorce, until financial orders are made.

15. Orders made without notice are rarely given the seriousness of ousting someone from their home without them having say in that but it can occur if the circumstances and evidence warrant it.

16. The court has standard precedent orders that can be used (5)

    
    

    Please note that this information is the authors view on this subject, who strives to ensure it is as accurate as it can be on the date published. It is for information only though for the reader to check by obtaining their own legal advice and the author does not accept liability for its use.

Footnotes

1 FLA 1996 section 62 (3)

2 FLA 1996 63 (1)      

3 G v G [2000] (Occupation Order: Conduct) 2 FLR 36 (CA)

4 Dolan v Corby (2011) EWCA Civ 1664 and Re  L (Children)  (2012)  EWCA Civ 721)

5 Update from Mr Justice Peel: Standard orders - Courts and Tribunals Judiciary