An occupation order can be made in the family court under Part IV of the Family Law Act 1996. The order is made to determine who has the right to reside within the family home, who is permitted to return and who should be excluded from that home. An occupation order is widely viewed as a short term arrangement and will usually last for between 6 and 12 months. An order can be reviewed and extended in some cases.
The duration of the order that can be granted will depend upon the status of the applicant and the relationship between the parties who occupy the home.
There are 5 different types of occupation order that can be granted and these are categorised by the relationship between the parties and the parties’ rights to occupy the property. This article is concerned with two of the five types of order – namely the difference between a s.33 Order and a s.36 order.
A s.33 Occupation Order is one where “the applicant has estate or interest etc. or has home rights”. This is the case where the parties were married and the property is the matrimonial home. A s.33 order may “in so far as it has continuing effect, be made for a specified period, until the occurrence of a specified event or until further order” (s.33(10))”. A s.33 order can be made for a non-specified period of time, or can be brought back to court and extended if the judge sees fit.
A s.36 Occupation Order is one where the applicant is a “cohabitant or former cohabitant with no existing right to occupy”. This is the category under which the parties of a “non-marriage” would fall in to. A s.36 order “must be limited so as to have effect for a specified period not exceeding six months, but may be extended on one occasion for a further specified period not exceeding six months”. (s.36(10)).
A “non-marriage” is most commonly used to describe a Nikah only ceremony in Islamic marriages. This is where the Nikah was not followed by registering the marriage by way of a civil ceremony. Under the law of England and Wales, a Nikah only ceremony is not recognised as a marriage, and an applicant who had only had the Nikah would not be a ‘non-entitled applicant’ for the purposes of an Occupation Order and would only be able to secure a s.36 order to last for a maximum of 12 months. A s.36 order cannot be extended beyond the maximum.
This is indirectly discriminatory to Muslim women who have had a Nikah ceremony and who have failed to register the marriage through a civil ceremony thereafter. Despite being viewed as married by the community and their families, Muslim women who have only had the Nikah ceremony may be surprised at the small extent to which they are able to protect their rights under the law. In November 2017 a survey was conducted that discovered that 61% of women who had a traditional Muslim wedding ceremony had not had a separate civil ceremony to make the marriage legal under the law of England and Wales.
However, following the decision in the case of Akther v Khan  EWFC 54, women who have had a Nikah only ceremony may be able to obtain an occupation order under s.36 of the Family Law Act 1996, where their relationship can be redefined as a ‘void marriage’ as opposed to a ‘non-marriage’.
In finding that Ms Akhter and Mr Khan had the legal status of husband and wife, Mr Justice Williams held that Ms Akhter was entitled to maintenance from her husband after their separation. A non-marriage would have meant that she was no so entitled.
Mr Justice Williams applied a flexible approach to the interpretation of s.11 of the MCA 1973, including considering fundamental human rights principles. He concluded that their 18-year relationship was a ‘void marriage’ as opposed to the ‘non-marriage’ classification previously applied to Sharia marriages. Their marriage was void because the parties had only had the Nikah ceremony and not registered it afterwards.
In this case, Ms Akhter had made attempts to complete the marriage process by having the civil ceremony, but her husband had refused to have the civil ceremony. The judge found that the Nikah ceremony itself had all the hallmarks of a marriage, even though it was not one and that the parties had lived as a married couple for all intents and purposes. Therefore, he concluded that the marriage fell within the scope of section 11 MCA 1973.
Mr Justice Williams stressed that this ruling did not apply to all religious ceremonies, but that this approach was to be used on a “case-by-case basis” in order to determine whether the ceremony fell under the Marriage Act 1949. He said that “those who have religiously married and have …raised families and been treated by the family community and state authorities as married, should not have the term ‘non-marriage’ applied to them”.
This is a very positive conclusion for those who would previously have been automatically excluded from obtaining a s.33 Occupation Order. Where it can be shown that the relationship was for all intents and purposes a marriage, albeit a void one because it was not registered, the applicant may be able to obtain an order that is not time limited to a maximum of 12 months. It will however, very much depend on the individual circumstances of the relationship.
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