Occupation orders ss33 - 38 FLA 1996

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  • Occupation orders ss33-38 FLA 1996
    • Pre-action correspondence - will R leave home voluntarily?
    • What is an occupation order?  An A who wants to exclude R from the home or wants to return to live in the home having been thrown out requires an OO.
    • Five sections of FLA that deal with different scenarios.
      • s33 A and R both have a right to occupy the property (all married couples/Civil partnerships have this by virtue of "home rights".
      • s35 A is former spouse or CP with no right to occupy but where R has right to occupy.
      • s36 A is cohabitant/former cohabitant with no right to occupy but R does have right to occupy.
      • s37 A is spouse or former spouse and neither A nor R have right to occupy.
      • s38 A is a cohabitant or former cohabitant and neither A nor R have right to occupy.
    • Eligibility: must be associated person (s62) - s62(3(a) married couples and property must be a dwelling house and have been intended to be home of the parties.
    • What would court consider?
      • the housing needs and resources of the parties and any relevant children.
      • Financial resources of the parties.
      • The likely effect of the order on the health, safety and well-being of the parties and any relevant children.
      • Conduct of the parties.
      • Balance of harm test.
    • Must attach power of arrest unless feels A protected sufficiently without.

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