If your partner refuses to leave the family home, you may apply to the Court for an occupation
order. An occupation order can exclude a person who has a legal right to reside in the home from
entering it. You must be associated with the person against whom the occupation order is made (if you are co-habitants or married then you are associated). The home must also be, have been at any time or have been intended to be the home of you and the person you are associated with. Normally, you or your partner must also have a right to occupy the home – e.g. be the owner or tenant, although in exceptional cases it is possible to apply for an occupation order where neither party has the right to occupy the home.
Due to the fact that the Court will be removing a legal right of a person, there are strict tests that
have to be met before an occupation order is granted. These tests differ depending on what rights
you have to occupy the home. However, the Court will always consider the following:
1. The housing needs and housing resources of both parties and any relevant child;
2. The financial resources of each party;
3. The likely effect of any order, or decision not to make an order, on the health, safety and
wellbeing of the parties or relevant child; and
4. The conduct of the parties.
The Court applies what is known as ‘the balance of harm test’. If it appears to the Court that failure to grant an order is likely to result in the applicant or any relevant child suffering significant harm attributable to the conduct of the person against whom the order is sought (the respondent), the Court will make the order unless:
1. The respondent or any relevant child is likely to suffer significant harm; and
2. The harm likely to be suffered by the respondent or the child in that event is as great as, or
greater than, the harm attributable to the conduct of the respondent that is likely to be
suffered by the applicant or child if the order is not made.
In circumstances where the respondent would have nowhere else to reside and the children were
simply unhappy, it is unlikely that the Court would grant an occupation order.
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