Q&As

Can one party to marriage make an application to the court for an occupation order where they have left the family home, the children are living with them and there has been no domestic violence?

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Published on LexisPSL on 24/08/2020

The following Family Q&A provides comprehensive and up to date legal information covering:

  • Can one party to marriage make an application to the court for an occupation order where they have left the family home, the children are living with them and there has been no domestic violence?

Can one party to marriage make an application to the court for an occupation order where they have left the family home, the children are living with them and there has been no domestic violence?

Where one spouse seeks an order that the other spouse leave a property in which they live together, an application may be made for an occupation order under the Family Law Act 1996 (FLA 1996). An occupation order can do a number of things, including requiring one party to allow the other to enter and remain in the home and requiring one party to leave the home. An occupation order can be made against any associated person and there does not need to be domestic abuse in order for an application to be made. Occupation orders can be made under five different sections of FLA 1996 detailing distinct sets of circumstances. The extent of the court’s powers depends on the eligibility of the applicant, their relationship with the respondent and the status of the dwelling-house. The factors that the court must consider differ in each category: note the subtle differences between each section.

In relation to a married couple an application will generally be made as an applicant who has an estate, interest or home rights in a dwelling-house under FLA 1996, s 33. See Practice Note: Occupation orders. Under FLA

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