Applicants may not secure an occupation order until a final hearing and will need to consider what interim arrangements can be put in place

Unless the balance of harm test is plainly made out or the respondent agrees to vacate the property the court is unlikely to make an order without notice to the respondent, or at the first directions hearing if the application is contested. Many applicants find the court’s refusal to make orders distressing and then struggle to think about what they would like to happen in the interim.

One option for an interim measure is to invite the court to make an order which regulates the occupation of the property. Judges are often prepared to be creative about this and will be open to proposals for rota systems (regulating the use of the kitchen/bathroom/living room) or dividing up the house (if it is large enough) to give the parties their own space and to reduce the opportunity for conflict. It may be better to have a regulation order in place than no order at all.

The court needs financial information to assess the affordability of the proposals

In order to establish that an order should be made under s33(6) the statement in support should set out the financial information required in that subsection. The court will struggle to make orders without any details of the parties’ income/savings/outgoings, costs of running the property or costs of renting nearby.

The statement should set out the affordability of what is being proposed. If the applicant has no income and the respondent is not in a position to fund a rental property and maintain the outgoings on the family home then the applicant may need to reconsider what is being sought.

Occupation Orders Sections:

Section 33 – If you are entitled to occupy the property by virtue of a beneficial estate or interest or contract, or by virtue of any enactment giving you the right to remain in occupation. You are also eligible to apply under this section if you have home rights in relation to the property. For example, you can apply if you are the sole or joint owner, or the tenant or joint tenant of the property.

Section 35 - If you are a former spouse or former civil partner with no existing right to occupy the property.

Section 36 - If you are a cohabitant or former cohabitant with no existing right to occupy the property.

Section 37 - If neither you nor your spouse or civil partner is entitled to occupy the property, you can apply under Section 37.

Section 38 - If neither you nor your cohabitant or former cohabitant is entitled to occupy the property.