FLA Occupation orders: S 33: Estate, Interests or Home Rights

Question 1

what does S. 36 DVCVA do

Answer 1

places a duty on the court to when making an occupation order to consider making an non-molestation order

Question 2

S 33(1) states that

Answer 2

(i) entitled to occupy via virtue of estate, contract or enactment (ii) where has home rights

Question 3

where are home rights found

Answer 3

S 30(1)

Question 4

When will home rights arise

Answer 4

where S 30(1)(a) one spouse is entitled and S 30(1)(b) the other is not.

Question 5

What does S 30(2) state

Answer 5

gives a right to not be evicted or a right to enter

Question 6

what does S 30(7) do

Answer 6

negatively defines. must have have been or have been intended to be the matrimonial home

Question 7

what happened in S v S

Answer 7

never lived or intended to live in the property as a couple, therefore had no home rights

Question 8

What happens where have home rights

Answer 8

if entitled to occupy by virtue of home rights, eligible to seek an order ousting the R with whom associated with, from the property which has been their shared home.

Question 9

What sections contains the orders that can be made

Answer 9

S33(3)

Question 10

examples of orders to ensure safety

Answer 10

S 33(3)(f) full ouster? 
S33(3)(g) to keep away from the property

Question 11

What happened in Westcar v Westcar

Answer 11

an order was made under S 33(3)(g) however the judge has not justified the order and since it limits the freedom, there must be strong evidence to justify it and make sure it is HR compliant

Question 12

What happened in Tarr v Tarr

Answer 12

The Matrimonial Home Act implies the court has powers to restrict rights, even where they are the legal owner

Question 13

what did Chalmers say out ouster orders

Answer 13

they are draconian and should only be granted in exceptional circumstances but can arise from other situations that do not include serious violence (Dolan, Grubb)

Question 14

What did Chalmers v Johns; G v G hold about the criteria that must be applied

Answer 14

firstly the court must consider the balance of harm test S 33(7)- is the A or ROC likely to suffer significant harm (defined S 63(1)) attributable to the R’s conduct if an order is not made

Question 15

What happens if the A or ROC is likely to suffer significant harm

Answer 15

then an order must be made - if not consider S 33(6)

Question 16

What is the R would be likely to suffer greater harm

Answer 16

discretionary regime of S 33(6) operates

Question 17

What happened in Chalmers v Johns

Answer 17

S 33(7) is reserved for extreme cases of significant harm. Signifcant harm being considerable, noteworthy or substantial which is a high threshold. In the case a history of minor violence did not satisfy the test. Since the order is draconian the court refused to make it.

Question 18

What happened in B v B

Answer 18

Serious violence caused her to flee into accommodation which was unsuitable and would impair the development of the child with her. However, although this would satisfy the test. The harm would be greater the the R’s child as he had already moved houses and schools. Also, the mother would get priority of social housing, whereas if the father was kicked out he would go get no priority due to the domestic violence.

Question 19

What happened in S v F

Answer 19

the court made an order securing the occupation so his son could sit his GCSEs, therefore there is no requirement of bad conduct

Question 20

What happened in G v G

Answer 20

conduct is measured by the consequences and not by intention. Unintentional conduct can be taken into account. The couple both remained in the home while divorce proceedings went on, which caused a tense atmosphere. This was no more than any other family going through a divorce would have to deal with.

Question 21

What happened in Re L (Children)

Answer 21

the test of balance of harm could not be satisfied as it was attributable to the conduct of both the parties

Question 22

What happened in Dolan v Corby

Answer 22

Women had a drug addiction, while the both had the same housing needs. The man was more able to find accommodation. Appeal was dismissed, although the order was draconian it could be justified through the exceptional situation of the circumstances of her venerability and physicatric state.

Question 23

How long will an order last

Answer 23

S 33(10) specified time or until a further order.