The nature of occupation orders
Occupation orders, also known as ouster orders, are one of the remedies available to protect victims from acts of domestic violence. Those orders regulate the occupation of the family home with a view of protecting those remaining in it.
There are two types of orders that could be granted under occupation orders. Firstly, there are declaratory orders, which could be used to extend, declare or create rights and are a necessary pre-condition to a regulatory order where the respondent is but applicant is not entitled. They are not available where neither party is entitled as defined below.
Secondly, there are regulatory orders which regulate the occupation of the family home.
Possible regulatory orders that could be made by the courts are:
(a) Enforcing the applicant’s entitlement to remain in occupation against the respondent;
(b) Requiring the respondent to permit the applicant to enter and remain in the dwelling-house or part of the property;
(c) Regulating the occupation of the dwelling-house by either or both parties;
(d) Prohibiting, suspending or restricting the exercise by the respondent of his right to occupy the dwelling-house;
(e) Restricting or terminating the respondent’s home rights;
(f) Requiring the respondent to leave the dwelling-house or part of the dwelling-house;
(g) Excluding the respondent from a defined area in which the dwelling-house is included.
The law distinguishes between three different situations on the basis of the applicant’s entitlement to occupation of the family home. Those three situations are firstly where the applicant is an ‘entitled applicant’, secondly where the applicant is not entitled but the respondent is and lastly where neither party is entitled.
Defining entitled applicants
The law provides a clear definition of entitled applicant. The rule establishes that a person is entitled to occupy the dwelling-home where he/she has:
A beneficial estate or interest
Any enactment giving the right to remain in occupation, or
‘Home rights’ in relation to the dwelling-house
Where one spouse has legal or other rights of occupation in the family home, and the other party does not, then the latter is automatically given equal occupation rights, known as ‘home rights’.
The three situations
Where the applicant is entitled, any of the orders listed above could be made by the court.
In the course of considering whether to make an order the court has to take into account a certain criteria. Firstly, the court needs to have regard to all the circumstances of the case.
For more information on:
- The applicant is not but the respondent is entitled
- Neither party is entitled
- Breach of an order