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.
Further, to make a regulatory order the court needs to specifically consider the housing needs and resources of the parties and any children and their financial resources. In addition, it needs to take into account the likely effect of an order or lack of one on the health, safety and well-being of the parties or children and the conduct of the parties in relation to each other. Those factors are common for all application and serve as core criteria for the courts.
In addition, the court must make a regulatory order if it appears that the applicant or any relevant child is likely to suffer significant harm, attributable to the respondent, if an order is not made. However, the court must not make such order if it appears the respondent or relevant child is likely to suffer equal or greater harm if the order is made.
Therefore, the courts must make an order if balance of harm test is satisfied.
The applicant is not but the respondent is entitled
In those situations occupation orders may be ordered only against a former spouse, former civil partner, cohabitant or former cohabitant.
The fact that the applicant is not entitled is recognised in the orders available to him and those are under (c), (d), (f) and (g) above.
Whenever the court is dealing with such application, the core criteria are to be considered. If the applicant is a former spouses or civil partners further factors are the length of time since the marriage or civil partnership was terminated and the period since the parties ceased living together as well as the existence of any relevant family proceedings.
On the other hand, additional considerations in relation to former or present cohabitants are the length of time that the parties lived together, whether there are any children, the length of time since the parties ceased living together and whether there are any relevant family proceedings.
Further, if the applicant is a former spouse or civil partner and the balance of harm is satisfied, the court must make an order. No such obligation exists if the court is dealing with cohabitants.
Neither party is entitled
In general, the same orders as for not entitled applicant but entitled respondent are available in this category.
Here there is also a distinction between spouses and civil partner on one hand and cohabitants. In both situations, the core criteria above need to be considered. However, in case of cohabitants there is no duty to make a regulatory order even if the balance of harm test is satisfied, while the duty exists for spouse/civil partner applicants.
Breach of an order
The order itself would contain a penal notice warning the respondent that a breach may amount to contempt of court and be punishable with imprisonment.
Further, when granting occupation orders the courts may attach powers of arrest to them. Following which a police officer may arrest without warrant where he has reasonable cause for suspecting the respondent of being in breach.
Where no power of arrest has been attached, the applicant may apply for a warrant of arrest.