Why aren't Occupation Orders under section 40 of the Family Law Act 1996 not enforceable by law?
An occupation Order allows the Court to decide who should live, or not live, in the home or any part of it. Where an occupation Order is in force it can also deal with who pays the rent or mortgage and outgoings on the property, who has to maintain the property, what furniture and contents can be used and whether the party in occupation should pay a "rent" to the other person. However, despite such promises, this section is fundamentally flawed as there is no provision either in FLA 1996 or elsewhere to deal with enforcement. The Court of Appeal dealt with this specific point in Nwogbe v Nwogbe  Fam Law 797,  3 FLR 345, where it was held at para 27 that “it is clear…s 40 orders are not enforceable”. While this particular case concerned the enforceability of an s 40 obligation to discharge rent, the wider unenforceability of s 40 was clear. A further problem with s 40 is that such orders may only be attached ancillary to an occupation order. This therefore means that, for an applicant who wishes to only apply for a non–molestation order, there is nothing that specifically deals with property. I find this to be true in my own case when I went to court to have my own Occupation Order enforced and was unable to do so. As a result, this put my family and I under the threat of eviction because the court was unable to force my ex-husband to pay his half of our mortgage. I believe this ruling has wider implications for others in a similar situation. Therefore, I aim to petition my local MP to table an amendment to the existing law that gives the courts the power to enforce the specific provision concerning the payment of rent or mortgage and repair and maintenance of the family home. People are loosing their homes because they are being held to ransom by the non-paying person who cannot be sanctioned.