Victoria Lees is successful in securing an Occupation Order

The Applicant, who solely owned the house, was refused entry to his home by his estranged wife (respondent) and was left homeless. Victoria Lees managed to secure a final occupation order gaining him access to his home and ability to remain living in the home and an order the estranged wife must not return.

An Occupation Order is a form of injunction which is issued under the Family Law Act 1996. It determines who is entitled to reside in a property and may restrict or exclude parties from certain areas of the home or the home as a whole. These orders are particularly relevant in situations involving domestic abuse, where one party requires legal protection and security within the home.

In this case, the court considered section 33 of the Family Law Act 1996, the court carries out what is known as the balance of harm test. This process involves looking closely at the potential risks and impact on both parties.

One of the key questions the court must ask is whether the Applicant or any child involved is likely to suffer significant harm if the order is not made (Chalmers v Johns [1999] 1 FLR 392).If such harm is likely, the court is generally required to grant the order unless it is clear that doing so would cause greater harm to the Respondent.

In situations where this threshold is not met, the court still has the discretion to issue an Occupation Order. In those cases, the decision is guided by the core criteria test set out in section 33(6) of the Family Law Act which include:

– The housing needs of both parties, including whether alternative accommodation is available;

– Each parties’ financial circumstances and ability to secure housing;

– The impact that making or refusing the order may have on the physical and emotional welfare of all parties, including the children; and

– The nature of the parties’ conduct towards one another.

The duration of the order is determined by the court. In this case, the order is in place until conclusion of financial proceedings.

Victoria specialises in all private and public law matters including proceedings in relation to Occupation Orders.

If you would like any further information about Victoria, or other members of our Family Team please contact the family clerks on familyclerks@kbgchambers.co.uk or 01752 221551