There would have to be a very compelling reason to oust your H from the
FMH. Usually when such applications are made they are
using Part IV Family Law Act 1996
From the facts it does not
seem a case for an occupation order. If so and you feel the marriage is
over and given the financial position there are good prospects for you + S
to stay in
FMH then press on with divorce and get
ancillary relief sorted asap as the Court will not
grant a Decree Absolute if parties are in the same home.
Check your
position first as to whether you are in with a fighting chance of that.
All you want to know about occupation orders:
6.1 The
Family Law Act 1996, Part IV
Part IV of the Family Law Act 1996
('the Act') introduced a comprehensive code of powers for the courts,
covering a wide range of family members, based on the concept
of 'associated persons'. The powers given to the High Court, the County
Court and the Magistrates Court are, to all intents and purposes, the same.
A helpful flow chart can be found at Appendix 4. This is the principal form
of injunctive relief that will be sought in family proceedings, but other
applications may be made, e.g. under section 37 of the Matrimonial Causes
Act 1973 or the Protection from Harrassment Act 1997.
The
governing Rules are FPR 3.8, 3.9, 3.9A, 3.10, 4.24A and 8.1A.
These notes are intended as an introduction to the Act. They do not
pretend to be comprehensive. The Act is detailed and far more complex than
its predecessors, in particular in its use of defined terms - there are
over 20 definitions, some of which are set out in the definition sections
to Part IV itself (sections 62 and 63) and some of which appear within
individual sections. The key definitions are set out in these notes in
context.
The central provisions of the Act may be summarised as
follows:
1. The family rights of the non-owning/non-tenant
spouse derived from the MHA are broadly re-enacted, and defined as
'matrimonial home rights' (sections 30-32 and Schedule 4).
2. A wide
range of powers to make 'occupation orders' is given by sections 33-38.
Different sections apply depending on the relationship to each other of the
persons concerned and the nature of the existing occupation rights each may
have. Such orders may be sought by spouses, former spouses, cohabitants and
former cohabitants. They are also available to other categories of
'associated persons' provided that the applicant has an existing right to
occupy the home. Each section sets out the factors which govern the merits
of an application under it and the maximum duration of any order the court
may make. Sections 39-41 contain supplementary provisions which include
powers to make orders as furniture,
outgoings, maintenance, etc.
3. Non-molestation
orders can be made, in general or specific terms (section 42).
4. Ex
parte orders can be made in the circumstances set out in section 45, but an
'on notice' hearing must follow.
5. Undertakings may be accepted,
subject to the restrictions set out in section 46.
6. A power of
arrest must be attached to an occupation or non-molestation order sought on
notice unless the court is satisfied that the applicant (or child) will be
adequately protected without one (section 47).
7. Where an order not
containing a power of arrest is breached, or where the power was not
attached to the relevant provision, the court may issue an arrest warrant
(section 47).
8. The court is given power to remand an arrested person
on bail or in
custody (section 47 and
Schedule 5).
9. New powers to exclude suspected abusers from the home
are given to courts making interim care and emergency protection orders
under the Children Act 1989 (section 52/Schedule 6).
10. District
judges have jurisdiction to make orders and to deal with breaches,
including the power to commit.
Jurisdiction
6.2
Occupation and non-molestation orders - who can apply?
6.2.1
Non-molestation order (section 42). The applicant for a non-molestation
order must be associated with the respondent.
6.2.2 Occupation
orders (sections 33, 35, 36, 37 and 38). The parties to an application for
an occupation order must, depending upon the section under which the order
is sought, be either:
1. Spouses or former spouses, or
2.
Cohabitants or former cohabitants, or
3. Associated with each other in
some other way, the applicant having some-pre-existing right to occupy.
6.2.3 'Associated persons'. The definition of 'associated persons'
is set out in section 62(3)(4) and (5). The list should be carefully
studied, and read with other definitions which appear elsewhere in sections
62 and section 63. These provisions should be given a wide, purposive
interpretation.
NB: There will be many cases where two people
will be associated in more than one way. For example, spouses or former
spouses will commonly be the parents of a child, as may be former
cohabitants.
The principal categories of 'associated' persons
are as follows:
1. Persons who are or who have been married to
each other.
2. Persons who are cohabitants or former cohabitants.
Cohabitants are defined as a man and a woman who, although
not married to each other,
are living together as husband and wife; former cohabitants is to be read
accordingly, but cohabitants who subsequently marry each other are
excluded. (See also section 41, as to additional considerations in
cohabitant cases).
3. Persons who 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. The word 'household' is not defined,
and may present difficulties of interpretations. It would appear to be a
matter of fact and degree in each case. It has, for example, been suggested
that a group of students sharing a rented house may form a household.
Notice that gender is not mentioned in this definition, so that persons of
the same sex who share or have lived in the same household are included.
The word 'merely' suggests that e.g. a landlord and lodger living in the
same household may be associated if there is some further aspect to their
relationship.
4. Persons who are relatives. The word 'relative' is
very widely defined in section 63. Where, however, W divorces or separates
from H, the new spouse or partner of H will not be associated with W, so
the protection of this Act is not available to W.
5. Persons who have
agreed to marry one another (whether or not that agreement has been
terminated). Although no formality is required in this definition for the
making of the agreement, section 44 precludes the making of an order under
section 33 or 42 based on this form of association alone unless
the agreement is evidenced in writing or by the gift of an engagement ring
or a ceremony before witnesses. It is suggested that the evidence in
writing could consist of a newspaper announcement of the engagement or the
completion of forms at a Register Office or church, or a contract for a
wedding reception. Further, where the agreement to marry has been
terminated, sections 33(2) and 42(2) preclude the making of an application
for orders under those sections more than three years after the
termination.
6. Persons who, in relation to a child, are the parents
or have had parental responsibility. For the purposes of the Act a child is
a person aged under 18.
7. Persons who are parties to the same family
proceedings as defined in section 63. 8. Certain persons involved in
adoption proceedings.
6.3 Applications by children
A
child for these purposes is a person aged under 18. A child may seek a
non-molestation order or, provided he or she has an existing right to
occupy, an occupation order. By section 43, if the child is under the age
of 16, leave to apply must be obtained and Rule 3.8(2) applies; the
application in Form FLA 401 is treated, in the first instance, as an
application to the High Court for leave.
6.4 Matrimonial home
rights
Sections 33 and 35 refer to 'matrimonial home rights'.
That expression is used in the Act to refer to the rights which
one spouse has in the home where the other spouse is entitled to occupy a
dwelling house by virtue of a beneficial estate or interest or contract or
enhancement giving him or her the right to remain in occupation but the
former is not. Section 30 gives the spouse who is not so entitled (inter
alia) a right, if in occupation, not to be evicted or excluded except by an
order under section 33, and, if out of occupation, a right with leave of
the court to enter and occupy. This is in effect a re-enactment of the
Matrimonial Homes Act 1983. The other rights given to the non-owning
spouse, in particular in relation to registration, mortgages and tenancies
are referred to below.
For most purposes of the Act, including
the making of occupation orders, 'dwelling-house' includes any building or
part of a building, which is occupied as a dwelling, and any caravan,
house-boat or structure which is occupied as a dwelling, together with any
yard, garden, garage or outhouse belonging to and occupied with it.
Occupation Orders
6.5 Section 33 orders - who can
apply?
The applicant (A) will always be a person who is entitled
to occupy the home or who has matrimonial homes rights in it (section
33(1)). A person's entitlement to occupy will be established from ordinary
property law principles and may arise for example from joint or sole legal
ownership, a joint or sole contractual or statutory tenancy, a contractual
licence, proprietary estoppel, an entitlement under an express trust or by
virtue of a beneficial interest rising under a constructive or resulting
trust based on substantial contributions to purchase or
improvements. The home in question must be or have been the home of A and
another person with whom A is associated, or intended by them to be their
home. While there is nothing in subsection (1) to require that other person
to be the respondent (R), that is the effect of subsection (3). A can apply
under section 33 whether or not R has any existing right to occupy.
6.6 Some examples
Section 33 can be used by A to obtain
an order against R in all the following cases, which are shown to
illustrate the wide range of situations the section will cover.
1. A and R are married to each other and own or rent the home in joint
names.
2. A and R are married and the home is owned or rented in A's
sole name.
3. A and R are married and the home is owned or rented in
R's sole name. (NB: in 1. and 2. A is entitled to occupy; in 3. A as
matrimonial home rights.)
4. A and R cohabit and own or rent the home
in joint names.
5. A and R cohabit and the home is owned or rented in
A's sole name. (NB: in 4. and 5., A is entitled to occupy, so can use
section 33; had R been the owner or tenant, section 33 would not be
available though section 36 would).
6. A and his brother R share a
home owned or rented in joint names or in that of A.
7. A and her
cohabitant R occupy the home she formerly shared with her husband X, the
property being owned or rented in X's sole name. 8. A and her cohabitant R
occupy the home she formerly occupied with her husband X, the property
being owned or rented in the joint names of A and X. (NB: in 7., A is a
person with matrimonial home rights while in
8. she is a person who is
entitled to occupy; in each case she is associated with R).
9. A1 and
A2 are spouses and co-owners or co-tenants of the home they share with
their son R. (NB: A1 and A2 could apply jointly or one alone could apply.
If the home were in the sole name of A1 the same result would follow since
he is 'entitled to occupy', while A2 has matrimonial home rights as his
spouse.)
10. . A has been deserted in the matrimonial home by her
husband X. X's father R lived with them. (NB: This will be so if the home
is owned or rented in the sole name of A or X or in their joint names,
whether or not R is also 'entitled to occupy'. It will not be so however if
R alone is 'entitled to occupy', as for example where he is the sole owner
and A and X were bare licencees).
6.7 What are the court's
powers?
By section 33(3) an order may:
1. Enforce A's
entitlement to remain in occupation as against R;
2. Require R to
permit to enter and remain in the home or part of it;
3. Regulate the
occupation of the home by either or both of them;
4. Prohibit, suspend
or restrict R's exercise of any rights to occupy he may have;
5.
Restrict or terminate R's matrimonial home rights;
6. Require R to
leave the home or part of it;
7. Exclude R from a defined area around
the home.
The court may also:
1. Declare A's
entitlement to occupy - presumably declaring what that entitlement is
(section 33(4));
2. Declare that A has matrimonial home rights;
3. Provide that A's matrimonial home rights are not brought to an end by
R's death or the termination (otherwise than by death) of the marriage
(section 35(5));
4. Include other provisions under section 40 relating
to repairs and maintenance, outgoings, furniture, etc. (see below);
5.
Attach a power of arrest (see below).
6.8 Duration of the
order
Under section 33 there is no maximum duration. The order
may be made for a specified period, until the occurrence of a specified
event or until further order.
6.9 The merits
The
making of an occupation order is still regarded as 'draconian'. In deciding
what, if any, order to make the court must have regard to all the
circumstances including:
1. The housing needs and resources of
the parties and of any relevant child;
2. The parties' financial
resources;
3. The likely effect of any order (or a decision not to
exercise its powers) on the health, safety or well-being of the parties and
of any relevant child;
4. The conduct of the parties in relation to
each other and otherwise, it being noted that what matters is the effect
not the intention of the conduct (section 33(6)).
In addition
the court must also apply the 'balance of harm test' contained in section
33(7). If it appears that A or a relevant child is likely to suffer
significant harm attributable to conduct of R if an order containing one or
more of the provisions in subsection (3) is not made, the court shall make
the order unless it appears that R or any relevant child is likely to
suffer significant harm if the order is made and such harm is likely to be
as great as, or greater than, the harm attributable to the conduct of R
which is likely to be suffered by A or the child if the order is not made.
A good example can be found in the case of B v B (Occupation Order) [1999]
1 FLR 715.
'Harm' in relation to an adult means ill-treatment or
impairment of health. In relation to a child it also includes impairment of
development.
'Ill-treatment' includes non-physical forms and, in
relation to a child, sexual abuse. Where the significance of harm suffered
by a child turns on his health or development, these must be compared with
those reasonably expected of a similar child (see section 63(1) and
(3)).
A 'relevant child' means:
1. A child who is
living with or might reasonably be expected to live with either party to
the proceedings; or
2. A child, in relation to whom an order under the
Adoption Act 1976 or Children Act 1989 is in question in the proceedings;
or
3. Any other child whose interests the court considers relevant
(section 62(2)).
An order under section 33 may be sought where
there is no need to exclude R, etc.; this may include cases where all that
is required is an extension of matrimonial home rights to survive R's death
or a divorce. Consider also section 40.
6.10 Section 35 orders -
who can apply?
The parties to an application for an order under
section 35 will be former spouses, where R is entitled to occupy the home
by virtue of a beneficial estate or interest, contract or enactment and A
is not so entitled. The home must have been at some time their matrimonial
home or intended to be so. A former spouse who has only an equitable
interest in the home is treated as not being entitled to occupy for the
purposes of being eligible to apply under this section but that is without
prejudice to the right to apply under section 33 (section 35(11),(12)).
6.11 What are the court's powers?
If the court makes an
order under section 35 it must contain one or two provisions; which depends
upon whether A is or is not in occupation. If A is in occupation the order
must give him/her the right not to be evicted or excluded from the home or
any part of it by R for the period specified in the order, and prohibit R
from evicting or excluding A during that period (section 35(3)).
If A is not in occupation, the order must give him/her the right to enter
and occupy for a specified period, and require R to permit the exercise of
that right (section 35(4)).
By section 35(5) the order may also
include provisions similar to those in section 33(3) regulating occupation,
prohibiting, etc. R's exercise of his right to occupy, excluding R from the
home and defined area, etc.
The order may contain provisions
under section 40 relating to repairs and maintenance, payment of outgoings,
contents, etc.
NB: An order under section 35 may be sought where
there is no need to include provision under subsection (5) to exclude R.
The reason is that, by section 35(13), while an order under this section
remains in force, A has certain of the rights given by section 30 including
the right to pay rent or mortgage instalments to prevent possession
proceedings being taken by the landlord or lender.
6.12 Duration
of the order
The order must be limited to have effect for a
specified period not exceeding six months, but it may be extended on one or
more occasions for a further period not exceeding six months.
6.13 The merits
The court must take account of all the
circumstances, those listed being similar to those in section 33(6) but
with the addition of the length of time since the parties ceased to live
together and since the marriage was dissolved or annulled, and the
existence of any pending proceedings under section 23A or 24 MCA 1973, or
for financial relief against parents under the Children Act 1989, or
relating to the legal or beneficial ownership of the home (section
35(6)).
In addition, where the court is deciding to include a
provision under subsection (5) to regulate occupation of the home or to
exclude R, etc. there is a 'balance of harm' test to the same effect as
that in section 33 (section 35(8)).
6.14 Section 36 orders - who
can apply?
The parties to an application for an order under
section 26 will be cohabitants or former cohabitants where R is entitled to
occupy the home by virtue of a beneficial estate or interest contract or
enactment, but A is not so entitled. The home must be one where they live
or have lived together as husband or wife or intended to do so.
A person who has only an equitable interest in the home is treated as not
being entitled to occupy so as to be able to apply under this section, but
that is without prejudice to the right to apply under section 33(section
36(11)(12)).
6.15 What are the court's powers?
If the
court makes an order under section 36 it must contain one of two
provisions; which it is depends on whether A is or is not in occupation.
If A is in occupation the order must give him/her the right not to
be evicted or excluded from the home or any part of it by R for the period
specified in the order, and prohibit R from evicting or excluding A
(section 36(3)).
If A is not in occupation, the order must give
him/her the right to enter and occupy for a specified period and require R
to permit the exercise of that right (section 36(4)).
By section
35(5) the order may also contain provisions similar to those in section
33(3) regulating occupation, excluding R from the home and defined area,
etc.
The order may contain provisions under section 40 relating
to repairs and maintenance, payment of outgoings, contents, etc.
NB: Orders under section 35 may be sought where there is no need to
include provision under subsection (5) to exclude R. The reason is that by
section 35(13) while an order under this section remains in force A has
certain of the rights given by section 30 including the right to pay rent
or mortgage instalments to prevent possession proceedings being taken by
the landlord or lender.
6.16 Duration of the order
The order must be limited to have effect for a specified period not
exceeding six months but it may be extended once for a period not exceeding
six months (section 36(10)).
6.17 The merits
In
deciding whether to make an order the court must have regard to all the
circumstances including the factors listed in section 36(6) (which reflect
those in section 33(6)) together with:
1. The nature of the
parties' relationship;
2. The length of time during which they have
lived together as husband and wife;
3. The length of time elapsed
since they ceased to live together;
4. Whether they have or have had
any children together, or both have or have had parental responsibility for
any children;
5. The existence of any pending proceedings between them
for financial relief under the Children Act 1989, or relating to the legal
or beneficial ownership of the home.
Section 41 requires the
court to have regard to the fact that they have not given each other the
commitment involved in marriage when considering the nature of the parties'
relationship.
In deciding whether to include provision under
subsection (5) to regulate occupation, exclude R, etc., the court must have
regard to the factors listed in section 36(6)(a)-(d) (which reflect those
in section 33(6)) and have regard to the questions set out in subsection
(8) which constitute the 'balance of harm test'. In this case, however,
there is no duty on the court to include the subsection (5) provisions
because of the result of that test.
6.18 Section 37 orders - who
can apply?
The parties to an application for an order under
section 37 will be spouses or former spouses occupying a home which is or
was their matrimonial home, but neither is entitled to remain in occupation
by virtue of a beneficial estate, interest, contract or enactment. It
follows that neither can have 'matrimonial home rights'. It is likely in
practice that they will be bare licencees in a property owned by someone
else, or perhaps squatters. Note that both must be in occupation.
6.19 What are the court's powers?
The court may regulate
occupation, exclude R from the home and defined area, etc. (section 37(3)).
The order is binding on R alone and gives A no rights against any third
party. The court cannot include provision under section 40 as to repairs,
maintenance, outgoings, contents etc.
6.20 Duration of the
order
The order must be limited to have effect for a specified
period not exceeding six months, but it can be extended on one or more
occasions for up to six months.
6.21 The merits
The
provision of section 33(6) and (7) are incorporated, hence the familiar
factors and the 'balance of harm test' are applied imposing a duty to make
the order where its terms are met.
6.22 Section 38 orders - who
can apply?
The parties to an application for an order under
section 38 will be cohabitants or former cohabitants occupying the home
where they live or lived as husband and wife, but neither is entitled to
remain in occupation by virtue of a beneficial estate, interest, contract
or enactment. The section covers, therefore, the cohabitant equivalents of
the spouses in section 37. Note that both must be in occupation of the
home, though not necessarily now living together as husband and wife.
6.23 What are the court's powers?
The court may regulate
occupation, exclude R from the home and defined area, etc. (section 38(3)).
The order is binding on R alone, giving A no rights against any third
party. The court cannot include provision under section 40 as to repairs,
maintenance, outgoings, contents, etc.
6.24 Duration of the
order
The order must be limited to have effect for a specified
period not exceeding six months, but it can be extended once for a further
specified period not exceeding six months.
6.25 The merits
The familiar factors and 'balance of harm test' questions appear in
section 38(4) and (5). There is no duty to make an order because the test
is met.
6.26 Occupation orders: miscellaneous points
Section 39
1. Applications for occupation orders may be 'free
standing' or made in other family proceedings, defined in section 63(2)
(section 39(2)).
2. If the application is made for an order under the
wrong section the court may make an order under the correct one (section
39(3)).
3. The making of an application or an order based
on a lack of an entitlement to occupy does not preclude claiming a legal or
equitable interest in any subsequent proceedings (section 39(4)).
Section 40. On or after making an occupation order under sections 33, 35
or 36 the court may:
1. Impose on either party obligations as to
repair and maintenance or the discharge of rent, mortgage payments (as
defined in section 63) or other
outgoings (that word is not defined). Note that it is
unlikely that such an order will make a party who is not already
contractually bound to pay rent/mortgage payments/outgoings liable to the
landlord/lender/provider, nor release the other from his obligations. The
general law and sections 30(3), 34(1)(b) and 36(13) will entitle the
occupying party to pay the rent or mortgage.
2. Order the occupying
party to pay the other periodical payments in respect of the accommodation,
provided that the latter would, but for the order, be entitled to
occupy.
3. Grant either party possession or use of furniture or other
contents of the home.
4. Order either party to take reasonable care of
such furniture or contents.
5. Order either party to take reasonable
steps to keep the home and contents secure.
In deciding how to
exercise these powers the court must have regard to the parties' financial
needs and resources and their foreseeable obligations including those to
each other and any relevant child. Note that:
1. These new
powers to deal with furniture and contents are important and should not be
overlooked.
2. Any power of arrest attached to an order should be
clearly worded so that it does not apply to a provision inserted under
section 40.
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