Posted by Leanne Yendell on 1st February 2016

If you are a victim of domestic abuse, you may feel that you would rather compromise your wellbeing and safety in order to maintain a roof over you and your children’s heads. There is often a misconception that very little can be done to remove a partner from a property.

However, it is important for you to realise that if you fear a partner but they refuse to leave, there is injunctive relief available.

There’s a very big difference between finding it difficult to live with a person and actually being frightened of them. If you are simply finding it difficult to live with a partner, it may be that your relationship has broken down and you cannot amicably remain under the same roof. In this case, neither one of you can remove the other unless you are unmarried and the tenancy/title deed is in one of your sole names − in which case the person without rights to occupy must be given reasonable notice to leave.

If you are in fear of your partner, however, there is provision under the Family Law Act 1996 to obtain a Court Order to temporarily remove a partner from a property if they pose a risk to you and/or your children. You do not need to be married to that partner nor be the legal owner/tenant of the property.

This order is called an Occupation Order and it regulates the occupation of a specific property. An Order can seek to do the following:

  • Enforce a right to stay in the family home.
  • Enforce a right to return to the family home, for example, if you’ve been locked out when you shouldn’t have been.
  • Exclude someone from the family home even though they have a legal right to be there, for example excluding a spouse because of their violence and abuse.
  • Set out who has to pay the rent or mortgage and repair and maintain the family home.
  • Give a right to stay in the family home for a specified period and prevent your partner from evicting you during that time. For example, if you don’t have an automatic right to stay after your relationship breaks down.
  • Set out which parts of a home can be used by whom, for example, where you both have to live in different parts of the same home.
  • Ensure that home rights are not brought to an end by the death of a spouse or civil partner or by ending the marriage or civil partnership.

While an Occupation Order does not affect the ownership of a property, it can determine the short-term right of a person to live there. Depending on the circumstances, the Order will often last between 6 – 12 months, but you can reapply to extend the terms of the Order if a risk remains. It allows you the opportunity to live in a safe environment, during which time arrangements can be made for a more permanent solution. In cases of domestic violence, Occupation Orders are often made alongside Non-Molestation Orders, which provide for your protection from abusive behaviour and physical violence. Legal Aid is available to those who meet a financial and merits based assessment.

It is possible for a Power of Arrest to be attached to an Occupation Order, which means that if the Respondent disobeys it then they can be arrested by the police. Disobeying this Order is not a criminal offence, but the police will make an arrest and will bring the matter before the Judge in the Family Court.

Please do not suffer in silence or comprise on your wellbeing by living under the same roof as an abuser – the law aims to protect you and so Orders such as these should be utilised.

 

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