Occupation Order Tests

The Balance of Harm Test

The first, often referred to as the balance of harm test, sets out the court’s duty to balance the harm caused to the applicant, the respondent and any relevant children, if the order was or wasn’t made. In accordance with Section 33(7), the court must make an order if:

“…It appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if an order…is not made’.

There are however exceptions to this test. This is the case particularly when it appears that the respondent or any relevant child is likely to suffer significant harm if the order is made; or the harm likely to be suffered by the respondent or the child is as great as, or greater than, the harm likely to be suffered by the applicant or child if the order is not made. In cases where it can be established that there is a risk of significant harm to a child, the interests of the child will be the court’s paramount consideration.

The Core Criteria Test

If the balance of harm test fails, the case of Chalmers v. John [1999] 1 FLR 392 confirms the court can make an occupation order via the core criteria test and other factors listed in Section 33(6) of the Family Law Act. In accordance with this section, the court has a discretionary power to grant an injunction and should have regard to all circumstances including, but not limited to:

• The housing needs and resources of each of the parties and of any relevant child
• The financial resources of each of the parties
• 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
• The conduct of the parties in relation to each other and otherwise

In circumstances where an applicant is not entitled to an occupation order, the court will also consider a number of additional factors. These include:

• The length of time that has elapsed since the parties last lived together
• The length of time that has elapsed since the marriage or relationship was formally brought to an end
• The length of the relationship
• Whether there are any relevant children.

What other Considerations Will the Court have?

When making an occupation order, the court should also consider whether or not to make a non-molestation order: an order used to prevent violence or harassment. In these circumstances, “molestation” may include: pestering, intimidation or harassment of an applicant.

Furthermore, under Section 40, the court has the power to make an ancillary order, imposing certain obligations on either party. These may include the payment of rent, a mortgage or other outgoings. Those involved may also be obliged to pay for the repair or maintenance of the property. In deciding whether to exercise its power, the court should regard all of the circumstances of the case, including but not limited to the financial needs and resources of the parties , and their financial obligations, as well as the obligations they have to each other and any relevant children.