OCCUPATION ORDERS

The Family Law Act 1996, under Part IV, provides a legal structure for the court to regulate the occupation of a family or domestic home where there has been a breakdown in a personal relationship.

The law recognises that individuals in these situations may or may not have a legal right to the home, and may or may not have a close or former relationship with the person they are seeking to exclude. For this reason, the Family Law Act provides five different types of Occupation Orders, under Sections 33 to 38, each suited to a different legal and relational context.

Section 33 applies where the applicant has a legal or equitable right to occupy the property. This typically means the person is a legal owner, joint owner, tenant, or licensee. The respondent must be someone associated with the applicant, such as a spouse, civil partner, cohabitant, or parent of a shared child. Under this provision, the court may enforce the applicant’s right to stay or return, restrict or remove the respondent’s right, and regulate how both parties may use the home. This section includes the “balance of harm” test, which requires the court to grant the order if the applicant or a relevant child is likely to suffer significant harm without it, unless the harm to the respondent from making the order would be greater.

Section 35 applies where the applicant is a former spouse or civil partner who no longer has a legal right to occupy the property. Even though they have no legal entitlement to the home, the law recognises that former marital partners may need temporary protection or continued access. The court has discretion to grant a right of occupation for a specified period, usually six months, taking into account factors such as housing needs, financial resources, and the effect on children. The balance of harm test does not apply here in the same way as under Section 33.

Section 36 provides a similar remedy for former cohabitants who are not married or in a civil partnership and have no legal right to occupy the property. This section is more limited in scope, generally offering short-term relief. The court must consider whether it is just and reasonable to grant the order, based on the same types of discretionary factors as in Section 35. The duration is also usually limited to a maximum of six months.

Section 37 deals with situations where the applicant does have a legal right to occupy, but the respondent does not. This is often the case where someone is the sole owner or tenant of a property but is seeking to remove an ex-partner, relative, or other associated person who has no legal entitlement to be there. The court may exclude the respondent and may apply the balance of harm test, though its use is more discretionary here. This section serves to reinforce and protect an applicant’s occupation rights from unauthorised interference.

Section 38 does not provide a standalone route to an occupation order but gives the court general powers to support orders made under Sections 33 to 37. It allows the court to make additional directions to enforce the order effectively, such as assigning responsibility for rent, mortgage, or household bills, giving instructions about the use of furniture and household items, or ordering parties to sign documents necessary to carry out the terms of the order.

In summary, each section of the Act addresses a specific combination of occupation rights and personal relationship. Section 33 deals with those who already have a legal right to be in the home. Sections 35 and 36 support those who do not, based on their past relationship with the respondent. Section 37 protects those with a legal right from the presence of a non-entitled associated person. Section 38 allows the court to tailor and enforce its decisions practically. This legal framework ensures that the court can balance housing rights with protection from harm, offering a flexible but principled approach to managing domestic living arrangements in challenging circumstances.