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Occupation Orders after Grubb

Byron James of Guildford Chambers explains the significance of Grubb v Grubb for occupation orders where there are no allegations of violence.

Image of Byron James barrister Guildford Chambers

Byron James, Guildford Chambers

Every so often there is a case of potential importance which slips under the radar, and whose significance is not realised until much later. It is to be hoped that this fate will not befall the case of Grubb v Grubb [2009] EWCA Civ 976, in which Lord Justice Wilson in the Court of Appeal has recently refused  leave to appeal against the making of an occupation  order.

The general context of the case will resonate with many practitioners: a divorcing couple living under the same roof, with one claiming that the living arrangement status quo cannot continue. The response of that party to these trying circumstances was, despite there being no allegation of actual violence, to make applications under the Family Law Act 1996 for both non-molestation and occupation orders.

It was the application for, granting and subsequent upholding of, the occupation order, however, that will be of most interest. The following were the findings of fact that the husband sought to challenge in the proposed appeal against the occupation order [at para. 14]:

(a) that, although the wife volunteered that in effect the husband was never physically violent towards her, he was verbally abusive towards her on numerous occasions;

(b)  that, following the presentation of the petition for divorce, the husband continued to be domineering and controlling towards her; and

(c)  that, by way of example, when the wife and two of the children arranged to go skiing in Les Arcs in March 2009, the husband made independent arrangements, contrary to the wife’s wishes, to stay there and ski in order, as the judge found, to use the holiday as an opportunity to apply pressure to the wife to withdraw her suit for divorce.

The wife’s application was based upon the criteria of s33(6), rather than the more stringent s33(7). If ever it was thought that in order to succeed with an application for an occupation order there must be something approaching a serious level of harm, congruent upon the significant harm threshold of s33(7),  it can be thought seriously no more. Such arguments specifically failed before Wilson LJ, who clearly approved the submission on behalf of the wife that “Parliament did not require the establishment of likely “significant harm” before such an order could be made”. Instead, recourse should be had to the four sets of circumstances specifically identified within s33(6).

In determining whether the wife “had in all the circumstances a case for an occupation order which in law the judge was entitled to accept” Wilson LJ considered the medical assessment of the parties by their joint GP. The GP’s evidence that the wife was suffering a moderately severe depressive disorder was taken seriously; the opinion of the GP that the husband was suffering some stress now, which might increase consequent upon him potentially leaving the former matrimonial home, was held as ‘going too far, and was “appropriately treated with caution if not scepticism”. The wife’s position that she ‘needed’ to live separately from the husband was accepted and contrasted against the husband who in the course of the proceedings had described a separation as merely ‘beneficial’. It was also of significance that there was a property available for the husband to move in to “that remains empty: too small for the wife but, at any rate in terms of size, more than adequate for the Husband.”

The husband attempted to highlight what he perceived to be a lack of seriousness being attributed to the making of the occupation order.  The essence of the husband’s case here was that the circuit judge had simply been trying to give effect to what she perceived as “a pragmatic way of resolving unpleasantness in the home prior to the determination of financial issues ”rather than considering the occupation order independently; in other words, she had been using the application as a device to achieve what she perceived to be the right outcome.   Wilson LJ was quick to point out that he “was of the clear view that the full court would not have accepted these arguments.” This was because “an Occupation Order is always serious, and no doubt can sometimes be particularly serious when it relates to a spouse’s removal from what one might almost call his ancestral home”.

Whilst there was some criticism reserved for the language used by the circuit judge, who had departed from “the tramlines of s33(6), although she had expressly noted them”, her decision that the criteria contained in s33(6) were sufficiently met to justify an occupation order was upheld.

One does come away from the case wondering about the importance in the decision of the accommodation open to the husband, held as suitable for him but not for the wife. There is rarely a divorcing couple living under the same roof who would not feel that their lives would be better off without the other one being there. These are also circumstances that create stress and pressure for those involved, which may lead naturally to complaints to the family GP of depression; they also, for whatever reason, make people do all manner of crazy things, to be held against them later on, whether that is exhibiting odd behaviour in the home or adopting strange positions during the litigation. These commonplace factors, however, rarely justify the making of an occupation order. One wonders, therefore, how far the court would have gone in granting the occupation order if, for example, the other section 33(6) factors existed in greater form than they did in Grubb and the suggested 'other accommodation' was (as usually is) with a friend or relative rather than another property owned by the parties. Wilson LJ stated:

“In the present case immediate separation was not only “beneficial” but “necessary” and, in the light of the husband’s failure to craft proposals for the wife’s accommodation in Damerel or indeed elsewhere, the only way of achieving it was to evict the husband, to whom his property at Garden Gate was readily available and who in any event had massive resources with which to fund his comfortable accommodation elsewhere.”

The complaints of conduct made in Grubb are not really at the level one would normally expect to see in a successful application for an occupation order. The complaints appear entirely subjectively based, comprising essentially value judgments that anyone would be likely, and able, to make when in the stressful position of continuing to live with the spouse they are divorcing. This decision may have the consequent effect of making it easier to persuade a judge to grant an occupation order under s33(6), where conduct is not really the main issue, but a solution is needed to difficult living arrangements. Essentially, it would appear that if the applicant can demonstrate the existence of credible alternative accommodation for the other party, or rely upon that party’s greater financial resources, then he or she need not cite very much by way of conduct to justify the order. Where the line is drawn, as to what may constitute credible alternative accommodation or adequate financial resources, remains to be seen.

Where such circumstances exist, there appears little to stop an applicant seeking an occupation order to remove the other party, allowing, of course, for a period of living together to become all together too ‘intolerable’. This prospect may be rendered even more attractive because, in Grubb, the husband was granted just 28 days for vacation and the the order was to endure until the conclusion of the ancillary relief proceedings, with an FDR in March 2010, and, in the absence of agreement at that stage, perhaps much further into the future.

Of course, the question of whether occupation orders should be used in this way is another matter; in the opinion of the writer, it can rarely be right to use a domestic violence remedy as a device to achieve a form of interim ancillary relief maintenance by another means.

Finally, there was criticism of the wording of the non-molestation order, which was not only drafted using the arguably out of date language of orders prior to the DVCVA 2004 changes (such language now being criticised in both practitioner and academic texts), but also included provision for protection against violence. The latter was removed because “there was scarcely any finding (nor allegation) of violence on the part of the husband to the wife and certainly no suggestion of such recent violence as might have justified an order against his use or threat thereof”. This was, one imagines, another example of a non-molestation order being drafted without much attention to the purpose of the order, i.e. the specific protection of this particular person through enforcement of the order in (most likely) the Criminal Court. Such drafting still appears regularly in many regional county courts, where judges actively refuse to adopt any language other than the standard ‘use or threaten violence’ or ‘intimidate, harass, pester or molest’. However, it should be noted that the case of Grubb was first argued in the Principal Registry; therefore it is not just the odd regional court that displays this problem. One wonders how many perpetrators will get away with breaking orders, given that the CPS appear regularly to refuse to prosecute on the basis of such drafting, before some guidance by way of practice direction or otherwise is given in respect of the drafting of non-molestation orders. 

Guildford Chambers