Occupation orders are orders made by the courts to enforce, declare or restrict rights to occupy the home. They are only a short-term solution and will not affect what happens to the property in the final settlement.
Where either joint owner cohabitant wishes to stay in her/his home, s/he can apply for an occupation order as an entitled applicant. As joint owners have rights of occupation under property law, in practice neither need apply unless there is a problem. However, either cohabitant may wish to get a regulatory order to oust the other partner or control her/his use of the property.
Criteria the court must consider
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
- financial resources of each party
- 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
- conduct of the parties
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’.
Balance of harm test
The court has to look at the ‘balance of harm’. This means that it 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 test is applied in the following way:[5]
- the court considers whether there is significant harm to the applicant or any relevant child. If there is, it must make an order, unless
- the other party, or any relevant child, is likely to suffer significant harm if the order is made, and
- the 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
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 Act defines ‘harm’ as ill-treatment or impairment of health, and, for children under 18, 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’.
Occupation orders for former joint owner cohabitants
Where there has been a relationship breakdown and the former cohabitant is a joint owner, they may still apply for an occupation order as an entitled applicant. The provisions are the same as for a joint owner cohabitant. When a court make such an occupation order, it can also order the partner remaining in the property to pay compensation, in the form of occupation rent, to the excluded joint owner. In assessing the occupation rent payable by the partner remaining in occupation, the court must take account of their beneficial interest in the property and reduce the market rent value accordingly.
Apply for an occupation order
You can use form FL401 to apply for an occupation order to ask the court to decide who should live in or return to your home or any part of your home
There are no court fees for applying.