Marilyn writes: According to the BBC today, violence or the threat of violence in the home, by a man or woman against their partner or even a child, is sadly not uncommon within our society. Hostility can worsen if the relationship has completely broken down, divorce proceedings are underway and emotions are running high. The impact of such violence should not be underestimated, and the victims must consider the options open to them.
Of course, when a relationship breaks down, both parties remain entitled to occupation of the family home. However the threshold for the removal of one of them, even though it will only be temporary, is high. In such circumstances, complaints are sometimes exaggerated or situations can be theatrically “staged”, in order that one spouse can be successfully removed from the matrimonial property.
I asked solicitor Nastassia Burton, who is based at Stowe Family Law’s Hale office, to write a post setting out the complex law in this area, with particular reference to the recent case of Re L (Children)  EWCA Civ. The case deals with potential harm likely to be caused to two children because their parents were at war with one another.
Domestic abuse is very serious, and is not always committed by men against women. Whenever it happens, it needs the full force of the law to try and stop it. Sometimes even the law is ultimately powerless to prevent a tragedy, but in most cases, the removal of one party does ease the pressure and allow time for both to recover.
If you are a victim of domestic abuse, you can apply for an order that will protect your right to live safely in your family home. Called an occupation order, this regulates the occupation of a specified property and can prevent one party from entering or approaching its vicinity. While an occupation order does not affect the ownership of a property, it can determine the short-term right of a person to live there.
This post will consider occupation orders in more detail, drawing upon the case of Re L (Children)  EWCA Civ to demonstrate their intricacies. The case is an interesting one, in which a mother applied for an occupation order to be made under Section 33(6) of the Family Law Act 1996 to exclude her spouse from the matrimonial home for three months. Before we consider the case in more detail, let’s take a closer look at occupation orders.
Who can apply for an occupation order?
Under the Family Law Act, you may apply for an occupation order if you are an associated person. Section 62(3) defines an associated person as follows:
“…A person is associated with another person if –
(a) They have been married to each other;
(aa)They are or have been civil partners of each other;
(b) They are cohabitants or former cohabitants;
(c) They live or have lived in the same household, otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder;
(d) They are relatives
(e) They have agreed to marry one another (whether or not that agreement has been terminated).
If you are, by definition, an associated person, you must also satisfy other criteria found in various sections of the Family Law Act in order to apply for an occupation order:
You may apply under Section 33 if you are entitled to occupy the property by virtue of a beneficial estate or interest or contract, or by virtue of any enactment giving you the right to remain in occupation. You are also eligible to apply under this section if you have home rights in relation to the property. For example, you can apply if you are the sole or joint owner, or the tenant or joint tenant of the property.
If you are a former spouse or former civil partner with no existing right to occupy the property, you can apply under Section 35.
If you are a cohabitant or former cohabitant with no existing right to occupy the property, you can apply under Section 36.
If neither you nor your spouse or civil partner is entitled to occupy the property, you can apply under Section 37.
Finally, if neither you nor your cohabitant or former cohabitant is entitled to occupy the property, you can apply under Section 38.
If you satisfy one or more of the above criteria and apply for an occupation order, the court must apply two tests before it makes a decision about whether to grant the order.
What are the tests?
The first, often referred to as thebalance of harm test, sets out the court’s duty to balance the harm caused to the applicant, the respondent and any relevant children, if the order was or wasn’t made. In accordance with Section 33(7), the court must make an order 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…is not made’.
There are however exceptions to this test. This is the case particularly when it appears that the respondent or any relevant child is likely to suffer significant harm if the order is made; or the harm likely to be suffered by the respondent or the child is as great as, or greater than, the harm likely to be suffered by the applicant or child if the order is not made. In cases where it can be established that there is a risk of significant harm to a child, the interests of the child will be the court’s paramount consideration.
If the balance of harm test fails, the case of Chalmers v. John  1 FLR 392 confirms that the court can make an occupation order via the core criteria test and other factors listed in Section 33(6) of the Family Law Act. In accordance with this section, the court has a discretionary power to grant an injunction and should have regard to all circumstances including, but not limited to:
(a) the housing needs and resources of each of the parties and of any relevant child;
(b) the financial resources of each of the parties;
(c) the likely effect of any order, or of any decision by the court not to exercise its powers…on the health, safety or well-being of the parties and of any relevant child; and
(d) the conduct of the parties in relation to each other and otherwise.
In circumstances where an applicant is not entitled to an occupation order, the court will also consider a number of additional factors. These include:
- The length of time that has elapsed since the parties last lived together
- The length of time that has elapsed since the marriage or relationship was formally brought to an end
- The length of the relationship
- Whether there are any relevant children.
When making an occupation order, the court should also consider whether or not to make a non-molestation order: an order used to prevent violence or harassment. In these circumstances, “molestation” may include: pestering, intimidation or harassment of an applicant.
Furthermore, under Section 40, the court has the power to make an ancillary order, imposing certain obligations on either party. These may include the payment of rent, a mortgage or other outgoings. Those involved may also be obliged to pay for the repair or maintenance of the property. In deciding whether to exercise its power, the court should regard all of the circumstances of the case, including but not limited to the financial needs and resources of the parties , and their financial obligations, as well as the obligations they have to each other and any relevant children.
Re L (Children)  EWCA Civ
In this case, the mother and father had eight-year-old twins. Following the breakdown of their relationship, a number of heated arguments ensued. The mother applied for an occupation order to have the father excluded from the property. The court found that the children were being adversely affected by their parents’ arguments and held that the twins were likely to suffer significant emotional harm as a consequence.
An occupation order was made under Section 33(6) of the Family Law Act, excluding the father from the property for a three-month period. A shared residence order was also made, stating that the children would live with their mother and spend regular time with their father. The dad was due to make a number of trips abroad while the order was in force and so it was a sensible decision that the wife should be the children’s primary carer.
The father appealed…
He refuted the decision on the grounds that there was no proof of violence and the judge was wrong to have made an order. Yet, in the recent case of in Grubb v Grubb EWCA Civ 976, an occupation order was successfully granted when no violence or significant harm had occurred. Similarly, in the case of Dolan v Corby  EWCA Civ 1664, the court recognised that:
“an order requiring a respondent to vacate the family home and overriding his property rights is a grave or draconian order and one which would only be justified in exceptional circumstances, but exceptional circumstances can take many forms and are not confined to violent behaviour on the part of the respondent or the threat of violence and the important thing is for the judge to identify and weigh up all the relevant features of the case whatever their nature”.
The father’s appeal was unsuccessful. Given the finding that the children would be adversely affected (i.e. would be likely to suffer significant harm) as a result of the quarrelling between their parents, I agree with the court’s decision. The parents were equally culpable for the arguments, but I fail to see how the court had any choice but to intervene and exclude one party from the former matrimonial home. The children’s welfare has to be the paramount consideration.
While the balance of harm test may be extremely beneficial in a number of cases, the mother’s application was in this instance unable to proceed under it. This is simply down to the fact that the significant harm that the children were going to suffer could not be attributable to the father alone. As such, the core criteria test had to be applied. Using this test, the court found there to be sufficient risk that the children would suffer emotional harm as a result of the arguments. While the court is not compelled to make an occupation order in such circumstances, the emotional harm that the children would suffer was deemed sufficient for the order to be made.
In summary: in light of recent case law, the court is still required to first consider the balance of harm test. If the criteria for this test cannot be met, the court should then consider the core criteria test through a consideration of all relevant circumstances surrounding the case. An occupation order should only be made where it is necessary. As we have seen, these orders are draconian and should only be granted in exceptional circumstances.
That said, family situations are many and varied and it is simply not possible to tailor them to a single, clear-cut formula. Recent case law shows that the court is conscious of this and is demonstrating a willingness to show flexibility within the guidelines.
If you are considering applying to the court for an occupation order, you should carefully consider your options with a specialist family solicitor as soon as possible.
Nastassia Burton went to the University of Leeds, graduating in 2007 with an LLB (Hons) 2:1 in Law. In 2008, she completed her Legal Practice Course at The College of Law in Chester. Nastassia has always had a keen interest in Family Law and joined Stowe Family Law’s Cheshire office when it opened in July 2008. She commenced her training contract in August 2008, qualifying in August 2010.