While many separating couples, whether married or cohabitees, come to an agreement that one of them will vacate the family home, it is not uncommon that both will remain in the property. This may be to assist with short-term childcare or to allow the vacating party time to find alternative accommodation. Often these interim arrangements run without major incident. However, such arrangements can give rise to unpleasant, hostile and sometimes violent environments. Such instances can cause emotional harm to any adults or children living in the home and are not in either party’s best interests and may require solicitor intervention to remove the offending party.
Where one party wishes for the other to leave the family home, or where they have been refused access to the property by the other, an application for a possession order can be made. The court has a wide range of powers when considering a possession order application. These include excluding one party from the property, allowing the applying party the right to remain in the property or part of the property and regulating both or either of the parties’ possession on the property.
As with non-molestation orders, such applications can be made initially ‘without notice’, where the court considers it just and convenient to do so. However, such applications are only likely to be granted in exceptional circumstances, given that they effectively deprive a Respondent of their home in circumstances where they have not yet had an opportunity to respond to the allegations made against them. When such an application is made on a ‘without notice’ basis a hearing takes place before the other party is aware that the application has been made. If the application is successful an interim possession order will be made. This must be served upon the other party and is usually effective for a brief period of time and until the parties return to court, at which point the other party is able to object to the application should they wish. The second hearing is usually listed a few days after the first.
The court will take a wide range of factors into account when deciding whether to make a possession order. These include, but are not limited to: the housing needs and housing resources of each of the parties and any relevant child or children; the parties’ respective financial situations; the likely effect of either making or not making an order on the health, safety and well-being of the parties or any child; and the conduct of the parties. Often, but not exclusively, possession orders are made when one party has used or threatened violence against the other. The court will not make a possession order based simply on an unpleasant atmosphere in the house. However, if there are regular, heated arguments in front of children this will often be enough to persuade a judge to make such an order.
If you are interested in discussing possession issues please contact Ella L. J. Bernhard