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Divorce law blog

Excluding your ex-partner from your home

06/06/2012   By: Andrew Moore

The Court of Appeal, the second highest family court in the country, recently heard a father’s appeal to his exclusion from the family home by way of an Occupation Order (The case of Re L (Occupation Order) 2012).

The case has not yet been fully reported but we understand that the father’s exclusion was based on the court deciding that the parties eight year old twins had suffered harm as a result of heated arguments between their parents. The court found that harm would continue if the father remained in the family home.

The father was not happy with the decision of the lower court and took his case to the Court of Appeal for it to be considered again. His application was dismissed because the Court of Appeal found that there did not have to be evidence of violence for the making of an Occupation Order, provided there was evidence that the children would suffer significant harm if the relationship between the mother and father continued to be a volatile one. The trial judge was right to intervene in this case in order to safeguard the children’s welfare.

What the court considers when making an Occupation Order

This case serves as a reminder of what the court has to take into account when hearing an application to exclude an ex-partner from the family home and what powers they have in their armoury under the Family Law Act 1996.

Before making an Occupation Order, the court has to consider the following: 

  • The housing needs and housing resources of each of the parties and of their children.
  • The financial resources of each of the parties - can one party afford to live elsewhere or can they stay with friends/family?
  • The likely effect of the court making / not making an order excluding the ex-partner on the health, safety or well being of the parties and of any child.
  • The conduct of the parties in relation to each other and otherwise. The court might need to consider / hear evidence of behaviour upon which a party seeks to rely in the application. If the Police have been involved, their records might also be disclosed to the court so the judge can make an informed decision.

What can the court do?

If the court finds that they should intervene in the home life of the parties, they can do the following:

  • Decide who remains in the home and who is excluded.
  • Regulate the occupation of the home by either or both the parties i.e. the mechanics of one or both parties remaining in the property.
  • Exclude a party from a defined area around the home. For example, the non-resident ex-partner is not allowed within 100 metres of the property.

If the respondent has been violent, or threatened violence, the court are likely to fix a power of arrest to the Occupation Order, unless the court is satisfied the applicant or child(ren) are adequately protected without it. Breach of the Occupation Order could result in the respondent being arrested and being imprisonment for a term not exceeding 5 years or to a fine or to both.

Conclusion

The court needs to be sure that an occupation order is required to safeguard the wellbeing of one of the parties or any child before making it. In most divorce and separation cases, it is unlikely there will be sufficient grounds for the court to exclude one party from the home pending conclusion of divorce proceedings or a cohabiting couples’ property right being dealt with, however upsetting or frustrating it is to have to continue living together.

Should you require any advice about occupation orders please contact one of our specialist family lawyers


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