Following the breakdown of a relationship, it can be impractical for both parties to remain living under the same roof, even if they consider themselves legally separated. Commonly, one party will move out while matters relating to the financial aspects of their former relationship are concluded. Of course, the financial practicalities of this may not be an easy matter to overcome. The court has powers to make orders excluding one person from an area around the home, together with the ability to make provision for who bears responsibility for paying the mortgage and whether the occupying person should pay a rent to the excluded party. These orders are known as occupation orders.
When considering applications for occupation orders, the court will consider the “balance of harm” test. This requires the court to firstly consider the risk to the parties’ children in making any order (using the welfare checklist), together with any risk of harm to the applicant and the respondent to the application. The court is obliged to make an order if it appears that the applicant or any child is likely to suffer significant harm due to the respondent’s conduct.
The court will then consider the core criteria listed in the 1996 Act. Whilst considering all the circumstances surrounding the application, the court should also consider:
(a) the housing needs and housing resources of each of the parties and of any relevant child
(b) the financial resources of each of the parties
(c) the likely effect of any order, or of any decision by the court not to exercise its powers…on the health, safety or well-being of the parties and of any relevant child
(d) the conduct of the parties in relation to each other and otherwise.
In addition to the above, it is likely the court will also give consideration to the length of time since the parties separated, the nature and length of the parties’ relationship, together with any other ongoing disputes or legal proceedings regarding property or finances.
Occupation orders granted by the court will ordinarily be time limited, frequently for six months. The applicant can return the matter back to court for an extension of this order as it approaches its expiry date, should this be required. The court will not automatically grant an extension and will revisit both the balance of harm and core criteria, before any extension is granted.
If you feel that continuing to share your home with your former partner is untenable, contact us today on 01234 889777 or 0207 177 9777 for a free consultation and speak to one of our specialist family lawyers to see how we can help you. Hunter and Uro Solicitors serve clients in London, Bedford and the surrounding villages.