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Who should live in the family home?

View profile for Mike Devlin
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What can you do when you’ve separated from your partner (whether or not you’re married) and you cannot agree on who should reside in the family home? It may be that one person financially cannot afford to live elsewhere whereas the other person could, or maybe there is violence or it is the case that to both reside under the same roof would adversely affect your welfare and/or that of your children.
 
Occupation Orders are available from the Courts and deal with many aspects of the occupation of the family home.
 
Occupation Orders can come in various different forms depending entirely on the individual case and what is appropriate. Also relevant is the nature of your relationship with the opponent and also the nature of how the home is actually owned (whether it be owned legally or rented). An Occupation Order may:
 
  •  Allow you to remain in the home;
  • Allow you back into the home if you’ve already left;
  • Order your partner to leave the property or part of it;
  • Exclude your partner from all or part of the home;
  • Exclude your partner from homing within a certain distance of the home;
  • State that the parties must live in separate parts of the house;
  • Put in place rules for the occupation of both parties if they are to remain in the house;
Who can apply? To be able to apply for an Occupation Order, you must satisfy two conditions:
 
  • Both parties must be “associated persons” and
  • The home must be a dwelling house and must have been or intended to be the home of the parties.
Even people who do not live together but who have been in “an intimate relationship of significant duration” may apply for an Order.
 
When making an Order, the factors which the Court considers vary depending upon who is “entitled” to occupy the home and also upon the relationship between the parties. In all cases however, the Court will have regard to all the circumstances of the case including the housing needs and housing resources of each of the parties and of any relevant child; the financial resources of each of the parties; the likely effect of any order, or of any decision by the Court not to exercise its powers on the health, safety or well-being of the parties and of any relevant child and the conduct of the parties in relation to each other and otherwise.
 
In appropriate cases the Court has the power to attach to an Order a Power of Arrest which gives the Police the power to arrest someone who is reasonably suspected of breaching the terms of the Order. 
 
This area of the law is not straightforward, however, the Family department at Stephensons are at hand to advise you on this area of the law which can be invaluable for you and your children at the very stressful time of relationship breakdown. Call our family advice line for free initial advice: 0800 073 1324
 
By family solicitor, Donna Hazeldine
  

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