We are often asked if we can make one party leave the home. If they will not vacate voluntarily, it needs an order of the court – an Occupation Order – to compel them to leave. An Occupation Order regulates the occupation of a shared home, by enforcing one party’s right to occupy, and excluding the other from occupation of all or part of the property. As it is a fairly draconian remedy, the courts impose strict criteria when deciding whether or not to make an order. They will consider whether the Applicant or any child is likely to suffer significant harm if an order is or is not made. The court will also look at the resources of each of the parties and their housing needs.
However, the recent case of Grubb has shifted the goal posts slightly. In that case Mr & Mrs Grubb, and some of their five children, lived in the property which had been inherited by the husband, and which he viewed as his ancestral home. They also owned, and at various times, had lived in two other properties. At the time of the hearing one of these (a six bedroom property) was rented to tenants and the other (an apartment) stood empty. The wife applied for an Occupation Order to exclude the husband from the house in which they were all living. The court found that the husband’s behaviour was strange, domineering and verbally abusive towards the wife, but it was accepted by all parties that there was no threat of violence or harm to the wife or the children. It seems that the husband’s odd behaviour was largely driven by obsessive paranoia that he would lose what he saw as his ancestral home and birth right on divorce, that led him to variously deny that the marriage had broken down, defend the divorce, and try to get the wife to sign agreements so that she would not make any claims against him on divorce. He also followed the wife on a skiing trip to Les Arcs, contrary to her wishes, in order to try to pressure her into withdrawing the divorce petition.
One of the key features of this case was the existence of the other properties owned by the family, and the husband’s considerable financial resources. The court held that there was no need to establish the likelihood of significant harm before an occupation order could be made, and that the court simply needs to look at housing needs and resources, other financial resources, the conduct of the parties, and how a decision of the court would affect the health, safety and well being of the parties and children.
The odd behaviour of the husband and the effect it was having on the wife was sufficient to convince the court to make an Occupation Order to exclude the husband from the home. They were no doubt aided in their decision by the fact that there was an empty apartment to which the husband could easily relocate whilst the proceedings continued. It is at least probable that had the six bedroom property not been tenanted, and therefore been available for the wife and children, that the court may not have made the order as the wife could easily have moved to that property.
This case highlights that there seems no longer to be a requirement to demonstrate to the court that there is a risk of significant harm if the parties continue to live under the same roof. Therefore it gives hope to parties, that where it can be demonstrated that it is possible to re-house one of them elsewhere, the general wellbeing of the family (which is likely to suffer should the parties remain together), will be considered sufficient to grant an Occupation Order.
So if you are able to demonstrate the existence of credible alternative accommodation for your partner or spouse, or rely on their greater financial resources and make a case for the general unpleasantness of remaining together under the same roof, it may be that a court will have sympathy and exclude your spouse or partner from the family home.
Meredith Thompson