Occupation case law – can a father be excluded from the family home?

13 Aug 2019

Can one party be excluded from the family home if there has been no violence against the other party or children? In the case Re L (Children) (2012) the Court ruled they could. The following article explains why this was the case.

This is a case where at first instance the Judge excluded the Father from the former matrimonial home with an occupation order under section 33 of the Family law Act and attached a condition to the shared residence order that the children should live primarily with the Mother.

It was found within the proceedings that the Father was a good father but that both the Mother and Father had acted inappropriately. Both parents were criticised for failing to see the reality of the situation in the family home with regards the hostility between them. The Father was excluded from the former matrimonial home for a period of 3 months and it was ordered that the children should live primarily with the Mother.

The Father appealed on the basis that the Mother had failed to make out her case under the Family Law Act and on the fact that there were no grounds to make a restriction about the children’s future residence.

On Appeal Black LJ concluded that the Judge at first instance had not gone beyond the boundaries of his discretion. This decision was made because it was concluded that the children were so badly affected by the parent’s behaviour that they were suffering from significant harm. It was considered that s.33(6)(d) of the Family Law Act 1996 could be applied; in essence the significant harm suffered by the children by the actions of both parties was a circumstance to be considered in determining whether or not the Father could be excluded from the property.

This case follows the earlier case of Dolan v Corby (2011) which stated that there was no requirement for violence before the court can make orders to exclude one party from their home or for non-molestation orders.

It has been argued that the combination of these two cases has significantly lowered the threshold for the making of occupation orders excluding one party from a family home. It remains to be seen whether or not such orders become more commonplace and easier to obtain.

How the family team at Osbornes can help

If you are considering seeking a divorce contact our expert divorce law solicitors at Osbornes who can advice you of your options after hearing the facts of your case. We can also advice you on occupdation orders and all other family law issues.

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