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.
Sorry for the length of the post-it is though important to appreciate the whole issue fully.
Hope that helps
Forum 
View my user profile 
