How does the court decide whether to grant an occupation order?

When deciding whether to grant an occupation order, the court uses two tests to consider the effects that making the order would have on all parties involved.

When handling domestic abuse cases, the court has a duty of care to the applicant, the respondent, and any children involved in the case.

Granting an occupation order can temporarily provide victims of domestic violence a safe place to live by removing their spouse from the shared home.

The court uses the evidence provided and two tests to decide whether an occupation order is the best course of action.

The ‘balance of harm’ test

When carrying out the balance of harm test it is the court’s duty to consider and balance the level of harm likely to be caused to the applicant, the respondent and any relevant children, if the order was or wasn’t made.

Section 33(7) of the Family Law Act 1996 states that the court must grant an occupation order if they believe that the applicant or any relevant child is likely to suffer significant harm attributable to the conduct of the respondent if an order is not made.

Exceptions to this rule occur when the court believe that the respondent or child are likely to suffer significant harm or greater harm than the applicant if the order is made. In cases that involve a child, the child’s wellbeing is always the court’s paramount consideration.

The ‘core criteria’ test

The core criteria test takes into consideration the applicant’s relationship to the respondent and entitlement to the property.

If the applicant is entitled to the property, then according to Section 33(6) of the Family Law Act the court must then consider the following core criteria.

  • The housing needs and resources of each of the parties and of any relevant child.
  • The financial resources of each party.
  • 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.

If the applicant is not entitled to the property then some additional factors will be taken into consideration, including, whether any children are involved, the length of the relationship, and the length of time since the relationship came to an end.

If you require help, support, or legal advice relating to domestic abuse or occupation orders, please give our team of family law specialists here at Lund Bennett a call on 0161 927 3118.