Occupation of the family home

Occupation order: 

An occupation order is an order which can be made by the court under section 33 of the Family Law Act 1996 and sets out who can live in the home. However, this will not affect how the property may be dealt with by the court when a final settlement is made. 

An occupation order may last indefinitely, or the court may set out that it should last for a defined period or until a specified event occurs (e.g. once the divorce is finalised). 

You can apply for an occupation order even if you do not own the property or the tenancy is not in your name, if you are married or in a civil partnership with the owner/tenant and live in the home. This is because you have ‘matrimonial home rights’. There is currently no fee payable to the court for making such an application. 

However, occupation orders are typically only made where there has been domestic abuse, and there are a number of factors the court will consider when deciding who can live in the property including housing needs, financial resources, the conduct of the parties and the likely effect of such an order. 

Home rights notice: 

An alternative way to enforce your right of occupation is to register a notice of home rights. However, this only applies where the property is owned by your spouse and would not apply if you were living in rented accommodation. To apply, a HR1 form must be submitted to the Land Registry; there is currently no fee to make such an application. If the notice is granted, your right to stay within the property is protected and the other party will be prevented from selling it, transferring the home or raising a new mortgage until the notice is lifted. Your home rights end once your marriage legally ends (i.e. once the final divorce order is granted). 

Leaving the property: 

If you have left the property temporarily, you have the right to re-enter the property and resume living there. Furthermore, neither party should change the locks without the other’s consent, unless a court order provides otherwise.  

If you are considering or going through a divorce and are concerned about who can stay in the family home, contact Vardags today for a free initial consultation with one of our expert divorce solicitors.  

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