|
Session
Four - Case Studies (for Legal Advisers)
The Family Law Act 1996: Case Studies (Magistrates)
- Occupation Orders
Example A (s.59(2))
When we look in detail at who can apply for an occupation
order we will see there are five categories of applicants and
it will be easier for applicants in some categories to get
an occupation order than others. It is also possible for a
person to fall into more than one category. The category with
the most "rights" is the applicant who applies under s.33 on
the basis that he/she "is entitled to occupy a dwellinghouse
by virtue of a beneficial estate or interest or contract ...".
Anne has been living with Chris at 4 Paradise Row for 5 years
but has been severely beaten up by Chris and thrown out of
the house. Chris is the sole freehold over of 4 Paradise Row
but Anne is applying under s.33 on the ground that she has
contributed indirectly or directly to the house which she shared
with Chris and that she has an interest in the property under
a constructive, implied or resulting trust. Chris disputes
this. On the face of it, a Family Proceedings Court could not
deal with this application. However, Anne could also fall into
another category of applicant, namely a cohabitant with no
existing right to occupy where the respondent has an existing
right to occupy under s.36. The criteria under s.36 are more
difficult to satisfy than under s.33 but because of the extreme
nature of the violence a court is likely to grant an occupation
order as an emergency measure in any event. Under s.39(2) if
an applicant in the court's opinion makes an application under
the wrong section the court can treat the application as made
under another section.
Therefore, applying the last sentence of s.59(1), the Family
Proceedings Court could decide it is unnecessary to determine
the dispute in order to make the order and could treat it as
made under s.36 and allow the property dispute to be dealt
with later in the High Court.
Example B (s.33 - Associated Person)
Margaret and Chris are brother and sister and share the same
house. They have a number of rows and on a number occasions
Christopher assaults Margaret.
-
If they are joint freehold owners of the
house, they are associated with each other as they are relatives
(s.62(3)(d) and s.63), therefore Margaret can apply for a
non-molestation order. In addition, she is an "entitled" person
and can apply for an occupation order.
-
If Christopher is the sole owner, Margaret
can still apply for a non-molestation order but as she is
not an "entitled" person she cannot apply for an occupation
order.
Example C (s.35 scenario)
Anne and Chris were married 25 years ago and live in 10 Birch
Avenue. Chris is the freehold owner. They were divorced in
7 years ago on the grounds of Chris' adultery. No order was
made regarding the house upon divorce. Until recently, Chris
has been living away with his partner and let Anne stay in
10 Birch Avenue. Chris has now moved back in and wants Anne
to leave; there have been frequent rows and threats of violence.
-
Anne could apply under s.35 for an occupation
order.
-
If the court granted one, as Anne is in occupation
it must contain a provision under s.35(3) and could contain
one under s.35(5). Anne might want an order to contain the
provisions on paragraphs (b) to (d) inclusive.
-
In deciding whether to grant the order, the
court would look at the factors in s.35(6). Relevant ones
against Anne's application would be (e) and (f) as there
has been quite a lapse of time since the divorce and the
cessation of living together but all other relevant factors
would be considered.
-
The balance of harm test, if raised and "proved" by
Anne, could impose a duty to make a s.35(5) provision if
the court first decides to make an order.
-
If Chris was ousted, orders could be made
against Anne relating to outgoings etc., and she could be
required to pay him rent.
An order could be made for up to 6 months
but is reviewable. There is no limit on the number of times
it could be renewed.
Example D (s.36 scenario)
Gaynor and Chris met at a party 3 months ago. They immediately
started living together in Gaynor's penthouse apartment of
which she is a tenant. Chris is an alcoholic, is unemployed
and in effect "lives" off Gaynor. After living together for
2 months, Gaynor saw the error of her ways and Chris was forcibly
evicted.
-
Chris could apply under s.36 for an order.
-
If granted, it would have to contain a provision
specified in s.36(4) and could contain a s.36(5) provision.
-
The factors in s.36(6) would be considered
and (d), (e) and (f) would all count against Chris.
-
In the unlikely event of an order being make,
it could last for 6 months but could be renewed only once.
Example E (s.37 scenario)
Anne and Chris married 5 years ago and have 2 children aged
4 and 2. Chris became unemployed 12 months ago and their house
was repossessed by the building society 3 months ago. Anne's
parents have allowed them to live in their house. They are
living abroad for 12 months and are due back in 6 months' time.
Chris became violent due to depression. He had already been
cautioned by the police for an incident one month ago when
Anne suffered severe bruising. Last night he hit her again
and threw her and the children out. They are now living in
bed and breakfast accommodation.
-
Anne could apply for an order under s.37
-
It could contain provisions under s.37(3),
the most likely ones to be considered being (a), (c) and
(d)
-
The factors in s.33(6) would be considered,
(c) and (d) being very relevant.
-
Anne could probably establish the likelihood
of significant harm and therefore a duty may well arise on
the court to make an order.
-
It can last for a maximum of 6 months and
be renewed once.
-
It would have no effect on Anne's parents.
They could require Anne to leave when they return.
-
As Chris is not entitled, no order under
s.40 regarding outgoings etc. could be considered.
|
Back
to top