FLA Occupation orders: S 33: Estate, Interests or Home Rights Flashcards
what does S. 36 DVCVA do
places a duty on the court to when making an occupation order to consider making an non-molestation order
S 33(1) states that
(i) entitled to occupy via virtue of estate, contract or enactment (ii) where has home rights
where are home rights found
S 30(1)
When will home rights arise
where S 30(1)(a) one spouse is entitled and S 30(1)(b) the other is not.
What does S 30(2) state
gives a right to not be evicted or a right to enter
what does S 30(7) do
negatively defines. must have have been or have been intended to be the matrimonial home
what happened in S v S
never lived or intended to live in the property as a couple, therefore had no home rights
What happens where have home rights
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.
What sections contains the orders that can be made
S33(3)
examples of orders to ensure safety
S 33(3)(f) full ouster? S33(3)(g) to keep away from the property
What happened in Westcar v Westcar
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
What happened in Tarr v Tarr
The Matrimonial Home Act implies the court has powers to restrict rights, even where they are the legal owner
what did Chalmers say out ouster orders
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)
What did Chalmers v Johns; G v G hold about the criteria that must be applied
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
What happens if the A or ROC is likely to suffer significant harm
then an order must be made - if not consider S 33(6)
What is the R would be likely to suffer greater harm
discretionary regime of S 33(6) operates
What happened in Chalmers v Johns
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.
What happened in B v B
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.
What happened in S v F
the court made an order securing the occupation so his son could sit his GCSEs, therefore there is no requirement of bad conduct
What happened in G v G
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.
What happened in Re L (Children)
the test of balance of harm could not be satisfied as it was attributable to the conduct of both the parties
What happened in Dolan v Corby
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.
How long will an order last
S 33(10) specified time or until a further order.
