Non-disclosure, Occupation Orders and Transfers of Tenancy
Published: 21/11/2023 07:00
When a couple separates, either party may be able to apply for one or both of two powerful property-focused remedies. The first is an occupation order. This regulates occupation of a family home, permitting (perhaps with conditions) occupation by one or both parties and restricting, prohibiting and perhaps terminating occupation by the other. The second is a transfer of tenancy order. This functions so as to vest in the applicant a joint statutory tenancy or a statutory tenancy held solely by the respondent. Given the historical and irreplicable nature of some such tenancies (e.g. protected or statutory tenancies within the meaning of the Rent Act 1977), the length of waiting lists for others (e.g. secure tenancies within the meaning of s 79 Housing Act 1985), and the potential duration of the tenancy itself (possibly unlimited), transfer of tenancy orders, particularly in ‘low-money’ cases are powerful remedies.
Orders for transfers of tenancy are available upon pronouncement of final decree to spouses, civil partners, former spouses and former civil partners, assuming that there has been in each case no remarriage or formation of a subsequent civil partnership (Sch 7, paras 4, 12 and 13). They are also available to cohabitants and former cohabitants upon the ceasing of cohabitation (Sch 7, para 3).
Occupation orders are much more widely available, including to ‘associated persons’ (within the lengthy meaning of the same – which includes ‘relatives’ and ‘intimate personal relationship[s] of significant duration’ – in s 62(3) Family Law Act 1995). An explanation of the applicability of the wide variety of occupation orders at ss 33 and 35–38 Family Law Act 1996 (FLA 1996), together with their respective idiosyncrasies, is best left for another occasion, but applications for occupation orders share with applications for transfers of tenancy a somewhat astonishing feature: an absence of an explicit disclosure requirement. For occupation orders, Family Procedure Rules 2010 (SI 2010/2955) (FPR) Part 10 simply requires that an application for an occupation order is supported by a witness statement, and, in the case of ss 33, 35 and 36, that it is served on any mortgagee or landlord. For transfers of tenancy the only specific guidance to be found in the rules is at FPR 8.33 and it is with respect to the possibility of obtaining non-party disclosure pursuant to FPR 21.2.
Information required by court
In reaching a decision, the court is required for each category of occupation order, and when considering the additional financial/practical provisions of s 40 FLA 1996, to have regard to the matters set out in the table (slightly simplified for ease of reading). There is also a column in the table referring to the information to which the court is to have regard for transfers of tenancy.
|Factor||*33, 35, 36|
|‘Balance of Harm’ test||Yes – s 33(7)||Yes – s 35(8)||Yes (but no ‘duty’, court just required to consider questions in s 36(8))||Yes – s 33(7) applied by s 37(4)||Yes (but no ‘duty’, just one factor)||–||–|
|all the circumstances||Yes||Yes||Yes||Yes||Yes||Yes||Yes|
|housing needs and housing resources of each of the parties and of any relevant child||Yes||Yes||Yes||Yes||Yes||Yes||–|
|financial resources of each of the parties;||Yes||Yes||Yes||Yes||Yes||Yes||Yes|
|financial obligations which they have, or are likely to have in the foreseeable future, including financial obligations to each other and to any relevant child||–||–||–||–||–||–||Yes|
|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;||Yes||Yes||Yes||Yes||Yes||Yes||–|
|conduct of the parties in relation to each other and otherwise;||Yes||Yes||Yes||Yes||Yes||–||–|
|nature of the parties’ relationship and in particular the level of commitment involved in it;||–||–||Yes||–||–||Yes**||–|
|The length of time ;||–||Yes: ‘elapsed since the parties ceased to live together’|
‘elapsed since the marriage or civil partnership was dissolved or annulled’
|Yes: ‘during which they have cohabited’|
‘elapsed since the parties ceased to live together’
‘during which they have cohabited’
‘elapsed since the parties ceased to live together’
|whether there are or have been any children who are children of both parties or for whom both parties have or have had parental responsibility;||–||–||Yes||–||–||Yes**||–|
|the existence of any pending proceedings between the parties||–||MCA 1973/ Sch 5, Pt II CPA 2004|
Sch 1, para 1(2)(d) or (e) CA 1989
[TLATA 1996, etc]
Sch 1, para 1(2)(d) or (e) CA 1989
[TLATA 1996, etc]
|Duration||Potentially for life of applicant (subject to s 33(5)/(9)(b)/(10))||6m, extendable once for further 6m (or death of either party if earlier)||6m, extendable once for further 6m|
(or death of either party if earlier)
|6m, extendable more than once for further 6m (death?)||6m, extendable once for further 6m (death?)||Permanent||Same as concomitant occupation order|
Note: ** If only one party entitled to occupy by virtue of the relevant tenancy
In addition, when considering a transfer of tenancy, the court is required to have regard to ‘the circumstances in which the tenancy was granted to either or both of the spouses, civil partners or cohabitants or, as the case requires, the circumstances in which either or both of them became tenant under the tenancy’ and ‘the suitability of the parties as tenants’ (Sch 7, para 5(a) and (c) FLA 1996).
Each column of the table demonstrates the need (with a caveat, in the note below the table) for evidence of:
- all the circumstances of the case;
- housing needs and housing resources of each of the parties and of any relevant child;
- financial resources of each of the parties; and
- 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.
The occupation order regimes each require the court to have regard to ‘conduct’, too. The caveat is that orders under s 33(7), s 35(8) and s 37(4) may be made in the more ‘extreme situation[s]’ (Chalmers v Johns  1 FLR 392 (referring to s 33)) if the balance of harm test so requires, and hence, at least for orders under s 33, s 35 and s 37, the disclosure at (2)–(3) above could be argued to be unnecessary in certain cases.
Additional/supplementary provisions in Family Law Act 1996 orders
The court’s powers under s 40 FLA 1996 (for occupation orders) and Sch 7, paras 10–11 (for transfers of tenancy) to make certain financial orders provides yet another reason for the court to be fully apprised of the parties’ financial positions.
In occupation order proceedings, the provisions of s 40 FLA 1996 empower the court to impose on either party obligations for repair, maintenance and the rent/mortgage/outgoings relating to the property. Periodical payments relating to the occupation may also be directed, together with various orders regarding furniture or contents of the property. However, it is worth noting that Butler-Sloss P observed in Nwogbe v Nwogbe  2 FLR 744 that s 40 orders were ‘unenforceable’ and ‘of no value’ (at ), and Thorpe LJ agreed, referring to this as a ‘statutory lacuna of real significance’ (at ).
In transfer of tenancy proceedings the court may also order a payment of a sum of money from the transferee to the transferor, which may be deferred or paid by instalments, but which requires a balancing of financial hardship caused to each party (Sch 7, para 10(5) FLA 1996) and consideration of the factors at Sch 7, para 10(4) FLA 1996 (being potential financial loss arising, parties’ financial needs and resources, and the parties’ financial obligations – including to any relevant child – now or in the foreseeable future).
The court may also direct joint and several liability for discharge or performance of obligations with respect to liabilities and obligations in respect of the dwelling-house (whether arising under the tenancy or otherwise) up to the date the order takes effect (Sch 7, para 11 FLA 1996).
It might be expected, therefore, that either the applicant would be prompted to supply the appropriate documentary evidence of the information needed by the court, or that there would be a set of rules providing for disclosure in a certain form (perhaps akin to Form E) – not necessarily immediately, but certainly prior to the court finally determining the occupation order/transfer of tenancy. However, the application forms themselves do not tee the applications up effectively enough in that respect.
Occupation order applications
As far as Part IV FLA 1996 orders are concerned, the application form, being the revised FL401 from February 2023, asks at para 7.18 ‘Is there anything else you want to happen with the family home?’ and has tick boxes labelled ‘I need the respondent to pay for or contribute to repairs or maintenance to the home’/‘I need the respondent to pay for or contribute to the rent or mortgage’/‘I need the use of the furniture or other household contents’.
Paragraph 7.19 invites the applicant to ‘include details of any hardship you might face if you are not able to stay in your home or return to it’ and it adds ‘If you can also demonstrate that the respondent is able to live elsewhere and is not entirely dependent upon the home, this may support your application’. These paragraphs point clearly towards the need for documentary evidence of financial and housing resources.
Further still, a new template witness statement is available in the form FL401T. The preamble to the form states that it is ‘designed to help you provide all the information that is needed from a supporting statement by the court’ (my emphasis) and adds that:
‘[t]he last page in this document is a template coversheet for any exhibits you submit. An exhibit is another document that you would like the court to see as part of your evidence. This could be: medical reports, social services reports or letters, print outs of text messages, emails.’
Yet there is no mention of the possibility of financial documentation being exhibited. This is despite the refence to ‘all the information that is needed’ (as italicised above), the highlighting in para 1.5 of the need to provide ‘details about the ownership and/or tenancy arrangements’ (without suggesting documentary evidence in support), and the seven tick-boxes at para 7.1 setting out the parties’ responsibility for mortgages and tenancy agreements.
The applicant is first invited on the FL401T to set out ‘examples of [the respondent’s] abusive behaviour’. This is described in Note 2.5 as follows:
‘You should tick as many of these behaviours as you think are appropriate.
Economic or financial abuse could include preventing you from working or blocking access to a bank account.
Coercive control is behaviour that can be humiliating, isolating or controlling and leave you feeling like you have no freedom or sense of self.
Online abuse could be: sending you threatening messages by text or email; controlling access to your phone, email or going online; intercepting your emails or text messages.
For examples of different forms of domestic abuse, go to GOV.UK and search for “domestic abuse: recognise the signs”.’
The applicant is then prompted to describe the ‘most recent’, ‘first’ and ‘worst’ incidents, and then to describe ‘patterns of abuse or other incidents’ and the impact on health, safety and wellbeing, before listing any witnesses.
For specifically occupation order (as opposed to non-molestation order) applications, the applicant is prompted at para 7.2 to describe their housing needs:
‘Describe what you need from your housing, including:
- information about travelling to and from work
- the needs of any children you are responsible for, such as number of bedrooms and proximity to their school
- financial factors – for example, if you have a low income, cannot afford to move or you have a favourable rental agreement with your landlord’
Paragraph 7.3 asks the applicant to set out the respondent’s housing needs:
‘Describe as best as possible what the respondent’s housing needs are, including:
- information about travelling to and from work
- any other places the respondent could stay that you are aware of, such as a family member
- if you believe they are able afford to rent elsewhere and why, such as they have a high paid job
- housing needs of any children for which they are responsible’
The two sections differ: the applicant is not asked about whether they have any other places they could stay, nothing is asked about the respondent’s responsibility for children, or the proximity to the children’s school(s) of any other place to stay, and the applicant is not specifically asked whether they can afford to rent elsewhere. Neither section prompts for any documentary evidence of what is being asserted.
Further, the prompts at paras 7.2 and 7.3 are leading (as with the notes throughout the form, e.g. the note at para 6.1 prompts ‘[t]his could include ongoing controlling behaviours’). The prompts differ significantly, lack neutrality and lack parity: it is suggested to the applicant that they might have a low income and be unable to afford to move. It is further suggested that a respondent may be able to afford to rent elsewhere and might also have a ‘high paid job’.
No prompt is given for provision of documentary evidence of any assertions in the statement, and no reference is made to any duty of disclosure, ongoing or otherwise.
Transfer of tenancy applications
The application form for transfer of tenancy is the much simpler D50B. This contains nothing that matches the detailed requirements of the new (or even old) FL401.
Legal framework for disclosure in Family Law Act 1996 applications
FPR 4.1(3)(b) empowers the court, except where rules provide otherwise, to make such order for disclosure and inspection, including specific disclosure, as it thinks fit.
FPR PD 21A expands upon this and states at para 2.1 that:
‘[i]n family proceedings other than proceedings for a financial remedy, where the court orders disclosure, the normal order will be for disclosure by each party setting out, in a list or questionnaire, the documents material to the proceedings, of the existence of which that party is aware and which are or have been in that party’s control. This process is known as “standard disclosure”.’
FPR PD 21A, para 2.4 provides that a court may also order ‘specific disclosure’, namely disclosure of documents/classes of documents or the carrying out of particular searches with disclosure of the search outcome.
In financial remedy proceedings there are various forms, the most prolific being Form E, which mandates the parties 35 days prior to the first appointment to provide a financial statement with (considerable) supporting documentation (FPR 9.14(1)). The absence of such a form for Part IV FLA 1996 applications leads to the risk of an applicant successfully persuading a court to determine their application without provision of all the available relevant evidence.
The approach of Moylan J in Tchenguiz-Imerman v Imerman  EWHC 4047 (Fam),  1 FLR 232 was to consider the CPR 1998 (specifically Part 31) where there was no specific guidance in the FPR (see ). On 27 February 2023, in Re P, H-L (Children) (Mobile Phone Extraction)  EWCA Civ 206,  2 FLR 528 the Court of Appeal referred with approval to this approach at :
‘It is well established that, where there is a gap in the FPR 2010, recourse is to be had where appropriate, to the CPR (see for example Tchenguiz-Imerman v Imerman  EWHC 4047 (Fam),  1 FLR 232 where Moylan J pointed out that the common law as now encapsulated in the CPR sets out a more detailed code than the FPR 2010 for the disclosure and inspection of documents.’
The authors of The Family Court Practice 2023 suggest1 that parties ‘should work on common law principles best summarised in CPR 1998 Pt 31’.
Lastly, it is clear from the decision of the Court of Appeal in Vernon v Bosley (No 2)  1 FLR 304 at 314–318 that there is a continuing obligation to give disclosure. CPR 31.11 concurs and summarises what the authors of The Family Court Practice 2023 describe2 as the ‘common law’ position: ‘that common law applies equally to family, as to any other, civil proceedings’. CPR 31.11(2) further clarifies that ‘[i]f documents to which that duty extends come to a party’s notice at any time during the proceedings, he must immediately notify every other party.’
Clearly, whilst FPR 4.1(3)(b) refers to the court’s power to make order for disclosure, the common-law disclosure obligations referenced in Vernon v Bosley (No 2) (above) are neither made explicit in the FLA 1996, nor referenced in the FPR. They are also not apparent from the relevant application forms. Worse still, the new FL401 and FL401T invite assertions to be made about financial resources and housing needs with no documentary evidence in support.
Points for practitioners
- It is understandable that a party to a Part IV FLA 1996 claim, whether unrepresented or represented by a lawyer unversed in the elusive minutiae of the disclosure obligations alluded to in Tchenguiz-Imerman v Imerman (above) and Re P, H-L (Children) (Mobile Phone Extraction) (above), may as things stand, not realise that they have disclosure obligations. This may lead to a lack of diligence in checking references to financial resources, or, worse, to exaggeration or perhaps (even deliberate) incorrect assertions as to their own or the other party’s financial circumstances.
- The court is required ‘to deal with cases justly, having regard to any welfare issues involved’ and that includes ‘so far as is practicable’ ensuring that they are ‘dealt with expeditiously’ and ‘ensuring that the parties are on an equal footing’ (FPR 1.1(1), (2)(a) and (c)). There is a real risk, if disclosure requirements are not set out clearly in Part IV FLA 1996 cases, that the court will make significant decisions about the parties’ housing and finances in the absence of key evidence (perhaps because a party is deliberately not presenting the full financial picture) and without the parties being on an equal footing (particularly as regards an absence of obtainable disclosure). This is particularly the case where one party is pressing a court to determine the application as early as possible, and on the basis of their evidence alone: such swift determination may be in tension with potential disclosure directions and may amount to rough justice.
- Domestic abuse is central to (although not a pre-condition of) many occupation order applications. Many applications are urgent because of that. That urgency inevitably means that decisions may have to be made weighing the timing of an order in light of the severity of the allegations, the quality and (possibly deficient substantive financial) content of the application. Reference is made on the FL401 and FL401T to the provisions of the Domestic Abuse Act 2021. The courts are alive to domestic abuse, which includes financial abuse and coercive control, and so there may be good reasons for financial documentation to be redacted in part (or possibly in full): boxes 3.6, 4.5 and 5.6 each state, after giving examples of ‘relevant evidence’ as being police reports, medical reports and photos, in bold text, ‘Do not include any information that you do not want the respondent to see’. Consequently, the court procedure should involve a court specifically being directed to consider – as in financial remedy applications – disclosure and the merits of appropriate redaction at the first hearing. The more ‘extreme situation[s]’ identified in Chalmers v Johns (above) would in any event likely lead to a court relying on the balance of harm test in s 33(7), s 35(8) and s 37(4), but that would not assist applicants consigned to ss 36 and 38.
- Despite the fact that transfers of tenancy are less likely to be accompanied by allegations of domestic abuse (the parties may have separated amicably, but do not wish voluntarily to make themselves homeless), the value of the tenancies concerned to the parties in all such cases should be such as to warrant routine financial disclosure directions from the court. A party may have had a relevant tenancy for many years and accrued other assets, knowledge of which should feed into the court’s decision-making process to lead to a fair outcome. Further, it is clear from Guerroudj v Rymarczyk  EWCA Civ 743, a case in which the Court of Appeal said that ‘the judge in this case had (just) enough to go on’, that, as the authors of The Family Court Practice 2023 summarise3 ‘[i]t is good practice to seek to furnish the court with evidence of the private and local authority housing options for each party, particularly if one party’s vulnerability by virtue of a disability may justify [their] being in priority need of housing pursuant to Housing Act 1996’.
- In transfer of tenancy cases, without appropriate financial disclosure, a court is not in a position to carry out the discretionary exercise set out in Sch 7, para 10 FLA 1996, and would only have limited information (regarding identification of, and quantification of, liabilities and obligations, and regarding need/ability to pay, etc) with respect to the liabilities and obligations relating to the dwelling-house, that would inform any decision made pursuant to Sch 7, para 11 FLA 1996.
- Relationship with MCA 1973: for married/civil-partnered couples, transfers of tenancy do not give the ‘clean break’ that is offered by an application under the MCA 1973. Also, it may be, if the financial picture is murky, and pension information is sought, that an application by way of Form A is more appropriate. Further, although a council tenancy is ‘property’ (see Jones v Jones  1 FLR 27, CA)4 upon which s 24 MCA 1973 can bite, Sch 7 enables the effecting of a transfer without the need for a separate transfer document, so it may be best in such cases to issue both applications and conjoin them, so as to retain the more powerful technical provisions in Sch 7 FLA 1996.
- The volume of applications for non-molestation and occupation orders has almost doubled since 2011:5 there were 8,275 applications in January to March 2023, of which 16% were for occupation orders; 5% of the 9,516 ‘domestic violence remedy’ orders (i.e. c. 476) made in the same quarter were occupation orders. Occupation orders were therefore made affecting c. 1,000 people (excluding children). The number of people involved in applications for occupation orders is arguably significant enough to warrant consideration being given to amending the disclosure rules, so as to avoid the risks of injustice.6 This is a task for the Rules Committee.
- The FL401 could benefit at box 7.19 from an update referencing alternative housing resources available to the applicant and suggesting that documentary evidence is supplied in support, where available.
- The FL401T could benefit from being re-written in more neutral language and from the inclusion of references to the need for financial documentary evidence and evidence of other accommodation for both parties.
- In the meantime, conscientious practitioners may wish to remind the court of the parties’ disclosure obligations, and to invite the court at the first hearing to direct appropriate disclosure, either by incorporating the civil form N265, or by directing disclosure using the wording of the relevant boxes of Form E/Form E1 as appropriate.