By Vanessa Lloyd Platt
In many cases, following a marriage breakdown, tensions can arise in the family home. Most cases can be sorted out between solicitors, with either party agreeing not to behave in a way that will upset matters to the extent that they should be excluded or give undertakings so that the parties can continue to live in the family home, albeit in separate places.
It is very important that you seek advice from your lawyer about either voluntarily moving out of the home or rushing to try to exclude the other party from the property. Applications for what are known as occupation orders to exclude the other party are very draconian orders and are only granted in a handful of cases.
In deciding whether or not to make such an order i.e. for sole occupation by one party to the exclusion of the other, the Court has to take into account all of the circumstances of the case, including:
- The housing needs of each of the parties with any children.
- The parties’ financial resources.
- The likely effect of any order or any decision by the Court not to exercise its powers on the health, safety and wellbeing of the parties and any children, or
- The conduct of the parties.
This means that because one party has alleged unreasonable behaviour or conduct, it will not necessarily result in the partner being excluded. The first issue that the Court will look at, as set out above, is whether or not the parties can afford to live separately from each other and whether there is a place for the excluded party to go.
If there is only one property, and the other party does not have the financial resources to rent elsewhere, then the Court will more than likely not make the order and mostly will make arrangements with undertakings that the parties shall remain in the home in the absence of any risk to one of the parties. It is therefore vital that applications are not simply made in order to increase chances of a better financial settlement. Very often such applications will fail.
The Court will look at any risk to the person making the application, and if they feel that there is a genuine risk to their health and wellbeing or those of the children, the orders will be made to exclude.
In most of the recent cases, the Court has described these kinds of orders as serious and should only be made where the circumstances justify it. The most common situation leading to an occupation order being made is where there has been defined and provable domestic abuse by one party against the other, particularly where there are children. Each case will be assessed on its own facts, and the Court has the ultimate discretion.
More often, if the circumstances allow, the Court will make an order which excludes one party from specified parts of the home only, or in between certain times. So, for example, they can exclude one party from the bedroom of the other or from utilising the kitchen or lounge at certain times to avoid them coming into the presence of the other.
It is absolutely fundamental that if you are at risk or have been subjected to domestic abuse that you seek advice to ensure that an application together with evidence is properly drafted to ensure that you will succeed in this application to seek the protection that you require.
On a final note, if the domestic abuse is so extreme that your partner has been arrested and/or charged with criminal assault or otherwise, bail conditions will prevent them from remaining in the home. These bail conditions sometimes run out and, in those circumstances, you can ask that they either be renewed or can seek an injunction including an occupation order for protection.
Read more in our blog: Who gets to stay in the house during a divorce. If you want to discuss any aspect of divorce and separation, please fill in our form below, call us on 0208 343 2998 or click to contact our divorce lawyers in London.
