Occupation order hearing next week, panicking

[mamacat612]

Can anyone tell me what my chances are or have any experience of this?

I am divorcing my husband, we have one child. I left the family home with our child to go live with family members due to his angry outbursts.

I asked him within a few weeks to please move out of the home and allow myself and our child to move back in. This is for stability for our child. He refused and said he has no where else to go. This is partially true, we moved to an area to be close to my family when we had our child and his parents and family members do live hours away, I don’t dispute this.

I applied for an occupation order on advice.

He is saying if he is forced to leave the home, that he will have no choice but to move back to parents which means loosing his job, or be homeless.

We both earn similar amounts, neither of us can afford a private rental and paying half the mortgage which I have accepted in my statement.

He is saying in his statement that I can get housing benefit and rent with our child and has done a calculation! Or live with family members but I want our child to be back in the family home. My family members can’t accomodate us long term and it’s crapped as we are in a flat.

He has started financial proceedings for the divorce as we haven’t been able to agree with either the sale of the house or buying each other out.

If I am to move back in I can’t afford the mortgage alone and would need him to still pay his half.

I don’t have any concrete evidence of his angry outbursts other than my statement, no other witnesses. But I can’t move back in and live with him until this is all sorted, his behaviour scares me.

For his part he says we did argue at the end of the relationship, but he denies any angry outbursts or intimidating behaviour.

We are both self representing and there will be a legal advisor at the hearing to ask questions.

Omg he goes out!
are you spying on him ? Stalking him?

Quite. You've separated, it's none of your business how he spends his time

Using the doorbell camera for my own house which I pay for? Ridiculous comment

The hous needs to go up for sale immediately if it not already up for sale. A house if priced correctly can sell in less than 3 months. I'd be putting it up for sale and a not overpriced amount. In meanwhile can you stay with family for a few months. If he gives up his job to move back to his parents you wont get child support for your DC.

What kind of figures are involved here for the house? How much deposit did you put in as opposed to him? How much equity will be realised when you sell the house? If you have only owned for a few years as seems evident from your posts and it is a renovation project, there is probably very little profit to realise in this market. So unless it is an enormous or unique property what exactly are you fighting over here?

Also you say you think there is still work to be finished in the house as if you have no idea what is happening but you obviously have access as you know the fridge is bare? You are coming across as disingenuous here. If your ex has a new girlfriend, that is also nothing to do with you now and suggesting that he might move in with her is utterly irrelevant to this situation.

It's not reasonable to expect him to move out, pay his half of the mortgage, and pay rent on a new place. If you can't afford to do that, what makes you think he can? You said in your OP that you earn similar amounts.
I'd say that your chances of an occupation order are slim to none. Especially having had zero police involvement to proof your case that he was abusive. It'll just be seen as "yet another acrimonious divorce".

Do come back and let us know how next week's court hearing goes though. Sadly, I think it will not have the outcome you think it will.

Hi OP, I'm a family law barrister and I routinely represent parties - sometimes the applicant, sometimes the respondent - in applications for Occupation Orders. I've name changed quickly to drop and try and help with some general information. I want to be really clear that I am not giving you legal advice; I don't know the ins and outs of your situation and am not aware of the precise allegations you make, etc. What I can do is set out the legal position and the approach the court is likely to take.

Essentially, there are two alternate bases on which an OO can be made - this is set out in the Family Law act 1996 at s33.

First, the Court has to consider if you or your child would suffer significant harm if the order is not made, and then carry out what is called 'the balance of harm test' under s33(7).

Second, if that balance of harm test is not met, the Court considers the factors under s33(6).

So starting with s33(7) and balance of harm - essentially, the Court is asking itself ''Is the risk of significant harm to Mamacat612 and her child if the OO is not made, greater than the likelihood of significant harm to Mamacat612's ex if the order is made?' If the answer is YES, the Court must make the order.

If the answer is NO, the Court moves to stage two - the s33(6) factors.These are the housing needs and financial resources that each of you have; the likely effect of any order on the health, safety, and well-being of the parties and your child; and the conduct of both parties.

It's important to remember that occupation orders are draconian. You are asking the Court to temporarily terminate someone's right to occupy the property that they own. That is a big ask. Sometimes that is appropriate - for example, if there is a risk of significant harm to you or your child if you have to keep living under the same roof as your ex, because he is dangerous or abusive. And he can easily stay somewhere else temporarily. So big risk of significant harm to you if order is made, versus no real risk of significant harm to him - annoyance at having to leave his home and pay rent elsewhere or stay with a friend, yes, but not significant harm. Court would likely make the order.

If there is no risk of significant harm to you (maybe the Court considers he is unpleasant, it will be difficult, but it's just about bearable) or there is some risk too you but the risk of significant harm to him is greater (he has genuinely nowhere else to go or can't afford to live anywhere else, would be at risk of losing his job, etc.) they are unlikely to grant the order.

The important things to focus on as you think about your case and also to address the Court on are the two-stage test - make sure you specifically address that. Focus on the phrase 'risk of significant harm'. How can you explain how that applies in your case to the Judge?

Also remember that the Court's powers aren't limited to removing him or letting him stay. The Court can also make orders regulating the occupation of the property more generally - for example, limiting you to certain rooms at certain times. For example it might order that you occupy separate bedrooms and aren't allowed into each others, and each of you use common areas like the kitchen or bathroom at set times (i.e. 12-1 for you, 1-2 for him). This is only likely to work if the property is of a decent size, but it's a way that the Court might try to 'square the circle' of each of you living under the same roof while the divorce and finances are sorted. Obviously that wouldn't be appropriate if the Court felt that his presence posed as risk of significant harm to you.

Final point - even if you do get an occupation order, the Court won't make it indefinite. It will usually be short term (3, 6 or 12 months). It could run until the end of the finances being sorted out but a Court is likely to be concerned about doing that if there's no suggestion that finances will be sorted any time soon and there's no timetable in place.

As I said, just general information here. I can try and answer any specific questions you might have but am not in a position to give you very detailed legal advice; I hope you understand that.

Spying on him

abusers frequently use ring doorbells to track the movement of people

OP step back - breath - you could end yourself in a lot of trouble

What’s the betting that, no matter what, OP will tell us that she got everything she wanted and the whole court stood up and cheered her on?

I think it's your comments that are ridiculous. I haven't even heard your ex's side and you are coming off worse than him. You need to take on board the advice on this thread because if people hearing only your side are seeing you as unreasonable you're not going to come off well in a court where your ex has the opportunity to put across his side too.

Being realistic on the sale of the property and the associated legal and other costs, and with 50% of any assets, your salary and any maintenance due for your child, what type of property can you buy / rent?

No. Please be honest, you've asked them to say that so you can get the marital home.

Also re the alleged abuse. Normal end-of-marriage arguments are not "abuse". You aren't an abused woman. I hope your friends haven't lied in their statements. He is going to start playing dirty too if you keep this up.

Sorry love, I've been divorced twice and this is not domestic violence or abuse. Slamming doors and throwing washing.....come on now, you are being ridiculous im sorry. We are only hearing your side. The court will hear both sides so tread carefully.

But you both need a stable home for your DC. You'll probably get shared care and your DC will live in both your and stbexh new home. Your best bet is a quick sale split tho GS 50/50 and shared care.

Throwing things, slamming things around, grabbing my child off me, shouting ade just normal end of marriage things are they?

I am not denying he has done all the awful things you say, but unfortunately unless you have documented evidence of abuse it's very unlikely the court with grant an occ order or non-mol.
I had police reports, a statement from my GP and my solicitor and a non-mol was not granted. A part of me died that day.

This isn’t true, I’ve stated my parents are selling up and moving into retirement accommodation where I won’t be able to stay.

It’s irrelevant how often he goes out. It’s legally his house as much as it is yours. You have the option of moving back in. That you don’t want to, without actual evidence of behaviour that meets legal standards, is not something the court will consider their problem to solve. Your claim that you are frightened of him will not automatically be accepted as justified or reasonable.

You made your inheritance a marital asset by investing it in the marital property.

I think if there’s no paper trail of abuse or police involvement/ charges, you can’t really claim that as fact that it occurred. It sounds like the reality is you can’t afford the house.. im sorry but in reality you need to live where you can afford. Of course stability is important but I think one move to a stable home with mum is fine and normal. Best of luck to you xx

Yes. Yes they are.

with the exception of grabbing your child, shouting, slamming doors and throwing laundry can all be typical end of marriage behaviour. I doubt many marriages end with a tearful heart to heart where both agree they’d be happier and better parents if they separated.

but the child grabbing is absolutely not ok.

To answer your previous comment, the courts absolutely take DV seriously. What they don’t take particularly seriously is sudden allegations of DV where there has been no previously recorded physical injury, no independent evidence exists (your family are not independent), the allegations only came to light when the person making them stands to gain and they amount to no more than ‘we yelled at each other a lot just before I decided to leave him’ (nobody leaves a blissfully happy marriage where there is never a cross word).

Just to note that the courts have discretion to order you to pay the costs of a failed application so even though you are self representing, this could indeed end up costing you thousands.

So sorry OP. I hear you and it’s not right. Men are shit and the system supports them.

A good father would find a room in a shared house and allow his child to have stability. Of course. But occupation orders are draconian and very hard to get. I hope you do though because that’s the right thing.

Because you want your deposit back, with no agreement in place, and the house renovated, and the higher valuation - he'd be mad to leave the house, because the impression you give is that you will drag your feet to sell the house.

You need to put the house up for sale at a reasonable price and both be invested in selling it.

Is there a compelling reason why they are doing this now when you and their grandchild need housing while the FMH sells? E.g. Is one of them ill or suffering from dementia? Is this evidenced, is the home on the market, have they an accepted offer on supported housing, employed a lawyer and surveyor?