I agree, if someone is threatened with an occupation order they cannot afford to be complacent and need specialist legal advice PDQ.
Under s33(7) Family Law Act 1996, the court must make an order if:
“…It appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if an order…is not made.”
Although the balance of harm is the first consideration if this test cannot be met, the court should then consider all the circumstances in light of the core criteria in s33(6) of the Act, namely;
(a) the housing needs and resources of each of the parties and of any relevant child;
(b) the financial resources of each of the parties;
(c) the likely effect of any order, or of any decision by the court not to exercise its powers…on the health, safety or well-being of the parties and of any relevant child; and
(d) the conduct of the parties in relation to each other and otherwise.
So there doesn’t necessarily need to be any violence or harassment. The courts may grant an occupation order when there is a toxic atmosphere between the parties for example.
However an occupation order regulates the occupation of the property by either one party or both. If a property is large enough an occupation order may give both spouses the right to occupy different parts of the former
matrimonial home. A court could take into account a business run from the property, the availability of alternative accommodation or the ability of either spouse to afford alternative accommodation. Because the general court rule that the unsuccessful party pays the costs of the unsuccessful party applications are frequently resolved by undertakings to avoid the risks of a costs order.
Having said that it’s worth bearing in mind that there is a great deal of frustration when separating and divorcing. Sometimes those who threaten to oust the other spouse, withhold finances or contact with children etc change their mind when they have cooled down or spoken to their solicitor. As a sale was agreed it seems you have accepted the former matrimonial home will need to be sold and the business moved anyway and there may be misunderstandings eg instructing a solicitor to gain a court order to have you leave may be a round about way of saying your wife intends to start financial proceedings to force a sale or transfer if she didn’t actually mention an occupation order.
