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Communtity Law Manual | Family violence & elder abuse | Property orders: Making sure you have access to your home and furniture

What a protection order does

Property orders: Making sure you have access to your home and furniture

When you obtain a protection order from the Family Court, the judge can also make various property orders to deal with who has access to the home and furniture.

Occupation orders (for people who own their own home)

Family Violence Act 2018, ss 115–120

An occupation order gives you the exclusive right to live in a property that either you or the other person (the respondent) owns or has a legal interest in. The effect of the order is that the other person has to move out, even if they’re the sole owner. You can get an occupation order even if already you’ve moved out of the property.

The judge needs to be satisfied that the order is necessary to protect you (the applicant), or that the order is in the best interests of a child of your family.

When deciding whether to make the order the judge must consider the reasonable accommodation needs of everyone who might be affected by the order.

Note: Although the Family Court can make an occupation order for any length of time, these orders are usually temporary only, to give both of you (both the applicant and the respondent) time to sort out where you’ll live and how you’ll divide your property.

Tenancy orders (for people who are renting)

Family Violence Act 2018, ss 121–124

If you’ve obtained a protection order from the Family Court, you can also get a tenancy order that gives you the right to live in any place that you and the other person have been renting together. You can do this even if the other person is named as the only (“sole”) tenant on the tenancy agreement. The tenancy order makes you the sole (only) tenant of the property, and it means that the other person stops being a tenant and no longer has a right to live there.

A tenancy order can’t be granted if other people are also tenants of the property.

Just like an occupation order, the judge can only make a tenancy order if they’re satisfied that the order is necessary to protect you or that making it is in the best interests of your children.

Furniture orders

Family Violence Act 2018, ss 127–139

A furniture order allows you to have possession of some or all of the furniture, household appliances, and household effects from a house you’ve shared with the respondent.

You can apply for a furniture order for on its own, or along with an occupation or tenancy order (in which case it’s called an “ancillary furniture order”).

Can I apply for a property order “without notice”?

Family Violence Act 2018, s 75 & 114

Yes. The Family Court can make occupation or tenancy orders “without notice” (that is, without the other person being told about your application) if:

  • you or a child of your family has been physically or sexually abused by the respondent, and
  • a delay could expose you or the child to physical or sexual abuse, and
  • a protection order has been granted, or is granted at the same time.

If you want to apply for a furniture order on its own, without also applying for a protection order, you have to apply “on notice”.

An application without notice for an ancillary furniture order must meet the first two of the three requirements set out above, and an occupation or tenancy order must also have been granted.

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