Introduction
Picture this: you are instructed to represent a client in their application for without notice non-molestation and occupation orders under the Family Law Act 1996 (‘FLA 1996’). The court has read the application and has granted a without notice order on the papers and listed a return hearing. All good so far. You read the order and see that the court has granted a non-molestation order (‘NMO’) but has refused to grant the occupation order without notice to the respondent. This is unsurprising given the high threshold set out in the caselaw for an order of this type to be merited.
You note upon reading the provisions of the NMO, however, that the respondent has been excluded from attending the applicant’s home address by virtue of an exclusion zone. You check the application and see that the applicant accepts that the respondent is jointly named on both the property’s title and mortgage and accordingly has a proprietary interest. It appears that the court has simultaneously declined to grant a without notice order preventing the respondent from returning to the home but has then done exactly that in the guise of a zonal NMO provision.
Is this lawful? It seems it depends on who you ask. Let us review the law.
The relevant law
As alluded to above, a without notice occupation order is a seldom seen creature. Chalmers v Johns [1999] 1 FLR 392 makes clear that occupation orders are a draconian remedy which should only be granted in exceptional circumstances. This is all the more so when considered on a without notice basis. Thorpe LJJ in that case set out that:
‘The gravity of an order requiring a respondent to vacate a family home, an order overriding proprietary rights, was recognised in cases under the Domestic Violence and Matrimonial Proceedings Act 1976 and a string of authorities in this court emphasise the Draconian nature of such an order, and that it should be restricted to exceptional cases… the order remains Draconian, particularly in the perception of the respondent. It remains an order that overrides proprietary rights and it seems to me that it is an order that is only justified in exceptional circumstances’.
Practitioners will be aware of the discretionary and balance of harm tests under s 33(6) and (7) FLA 1996 which underpin when the court should grant an occupation order. The court is empowered through the menu of options contained in s 33(3) FLA 1996 to substantially interfere with a respondent’s proprietary interest and ‘prohibit, suspend or restrict the exercise by him of his right to occupy the dwelling-house’. The statute is drafted in such a way as to list the ability to ‘require the respondent to leave the dwelling-house or part of the dwelling-house’ as a separate option to others such as requiring ‘the respondent to permit the applicant to enter and remain in the dwelling-house or part of the dwelling-house’. It can be said therefore that both prohibitory and mandatory conditions are available to the court in the exercise of its discretion.
The test for granting NMOs is different. When on notice, the court is required by s 42(5) FLA 1996 to ‘have regard to all the circumstances including the need to secure the health, safety and well-being of the applicant and of any relevant child’. When without notice (or ‘ex parte’ using the older parlance), the court is required to consider whether it is ‘just and convenient’ to do so and to consider the specific scenarios listed under s 45(2) FLA 1996.
Helpful guidance on exclusion zone provisions in NMOs was given by the President in Re Al M (Non-molestation Application) [2020] EWHC 3305 (Fam). The whole report is worth reading for practitioners in this area. For our purposes however, the following is relevant:
- 36 ‘It is important to be clear that the analysis that follows relates to this case and to similar cases where an exclusion provision is sought that would not interfere with a respondent’s existing right to occupy property by virtue of an estate or interest in the property or ‘home rights’ as defined by FLA 1996, s 30. The power under the FLA 1996 to regulate the occupation of property and, if justified, impose an exclusion around the relevant property, is contained in ss 30-38. This case concerns the court’s power to prohibit entry to a prescribed zone in order to protect an applicant from molestation under FLA 1996, s 42, in circumstances where the prohibition would not interfere with any existing property rights’ (emphasis added).
The following excerpt from the 2020 edition of the Red Book is quoted by the President:
‘A “stay away” clause, such as in (2) above, could be expressed as part of an occupation order but it is not necessary to make an occupation order solely for that purpose and [it] can be included in a non-molestation order. Such a provision should not be included as a matter of routine, must be proportionate and necessary and supported by evidence (R v R [2014] EWFC 38). A “get out” order, ie an order requiring a party to leave, cannot form part of a non-molestation order and must be made as part of an occupation order’.
Discussion
The guidance in Re Al M seems to suggest then that NMO exclusion zones are not lawful in circumstances where they ‘interfere with a respondent’s existing right to occupy property’. The commentary to s 33 FLA 1996 in the 2024 Red Book additionally states that ‘an NMO can include an ‘exclusion zone’ at least in cases in which it would not interfere with R’s existing rights to occupy property by virtue of an estate or interest in the property or home rights’.
This makes sense because without notice NMOs are far more common than without notice occupation orders. The caselaw recognises that without notice occupation orders should be granted sparingly as they represent a sharp interference with an individual’s property rights. Parties should ordinarily be given an opportunity to contest being kicked out of their humble abode at an on-notice hearing. It is paradoxical that an applicant is refused a without notice occupation order in accordance with this principle but is then at the same time granted the protection of an exclusion zone around the parties’ shared home. The exclusion zone achieves practically the same effect as an occupation order. Yet, the court has considered a more permissive test when granting the without notice NMO. The high threshold imposed by Chalmers v Johns and other authorities is circumvented.
An argument that is often made in response to this scenario by applicants at return hearings (and highlighted in the Red Book commentary cited in Re Al M) is that a NMO exclusion zone is lawful in circumstances where it only prevents a respondent from returning to a property they have already vacated as opposed to forcing them to pack up and leave. It is suggested that this is an artificial distinction for the simple reason that preventing a party from returning to a home they would otherwise be legally entitled to occupy is still an interference with their property rights. One can easily imagine a scenario where a respondent has technically vacated a property by going on holiday and comes back to the unwelcome surprise of being served with a NMO. Moreover, s 33(3) FLA 1996 enables the court to make both prohibitory and mandatory conditions to an occupation order; that is to say it can make an order that prevents the respondent from returning to the home as well as one that forces them to leave. It can therefore be argued that Parliament envisaged occupation orders being used to achieve either or both of these aims. The court when presented with an application for an occupation order must apply the same statutory tests regardless of which condition is pursued. It seems contrary to the will of Parliament to sidestep the tests that have to be satisfied when seeking this type of relief through repurposing an altogether separate section (with a lower threshold) to achieve the same effect.
Conclusion
Our quandary as set out earlier appears to be answered: it is unlawful.
This article was born out of an impromptu research session and it is hoped that it will provide some assistance to practitioners who encounter a similar situation in their own cases.
Kane Deitsch
17th March 2025
If you require advice, or representation, you can contact the clerks on 01483 539131 or email them at clerks@guildfordchambers.com
Disclaimer
This article has been provided free of charge for information purposes only. Although care is taken to ensure the information is accurate no responsibility is assumed by the author or any member of Guildford Chambers for reliance on the content or the accuracy of such content. The information, and/or commentary, does not constitute legal advice and if you have a legal dispute you should seek advice from a solicitor or barrister about your case. Accordingly, no member of Chambers shall be responsible for any action you take or refrain from taking in reliance of anything in this article or case summary.
