Occupation orders are a legal tool that can be used to protect an associated person for example current/ former spouse, civil partner] and their children in a range of different circumstances but what is an occupation order?
An occupation order enforces who has the right to live in a family home, and who cannot. It can also be used to regulate who can enter either the property itself and/or the areas surrounding the property. They can also set out who can live in which parts of the home if both parties need to continue to live under the same roof.
While the general aim of an occupation order is to regulate who can occupy and who should be excluded from the family home, they can also be used to:
- Enforce one party’s right to remain in the property
- Give permission to enter and/or remain in the property
- Prohibit, suspend or restrict the one party’s occupation in the property
- Force one party’s departure from the property
- Prevent a party from entering a defined area around the property
The terms of the order will depend on the particular situation surrounding the case.
Occupation Orders are most regularly used in cases involving domestic violence. They can also be helpful if one spouse has changed the locks and is denying the other access to the home or if clarification as to who can remain in the home and who will continue to pay the mortgage and bills.
It is important to note that the order will not change the legal ownership of the property.
If the case does involve domestic abuse, additional protection under The Family Law Act 1996 should be sought. For example, a victim of abuse can apply for a Non-Molestation Order. This will prevent the offender from pestering, harassing or molesting the victim.
How do you apply for an occupation order?
As an occupation order will ultimately exclude someone from entering their home, they are only granted in very serious circumstances. There are also very strict criteria that need to be met before an order is granted.
Firstly, the applicant must have a legal right to occupy the property. You would need to be either the sole or joint or sole owner, legal tenant or have ‘matrimonial home rights’ to occupy the property as your home.
You must be able to show you have lived in the property with the other party (the respondent).
You and the respondent must be officially recognised as being married or in a civil partnership, as having been married or in a civil partnership in the past, as being engaged to be married or enter a civil partnership or as having been in a relationship for more than six months.
Alternatively, you would need to prove you are a close family member or a child who lives in the home with either a parent or grandparent.
Even if these criteria are met, the court will only grant an order of occupation if it believes the applicant will suffer significant harm if the order is not granted.
Alongside weighing up the threat of significant harm to the applicant, the court will also consider the safety and wellbeing of any children, the mental and physical health of the applicant and the housing needs and finances of both parties.
The court will also apply the balance of harm test. This process is designed to offset the level of harm the applicant or their children would suffer if the court did not grant the Occupation Order.
If you do want to progress an occupation order, you will need to complete Form FL401 and lodge the completed form at court. An application for an occupation order can be made in 24 hours in an emergency. There is currently no fee for issuing an application.
An occupation order can be made for a specified period. This will usually be dictated by the date of a specified event or until an order is made to extend the initial order. Depending on the circumstances, this period cannot exceed 6 months. However, it can be extended for subsequent 6 months terms if the threat of harm remains.
What happens if an occupation order is broken?
Breaking the order is not a criminal offence in itself unless a power of arrest is included within the order. This is usually requested if the respondent has repeatedly used violence or threatened the applicant with violence.
If a power of arrest has been included, breaking the order may result in a fine or prison sentence. If power of arrest hasn’t been included, you are able to apply to the court for a warrant of arrest by providing evidence to show the court the respondent has breached the order.
If you are involved in a case that requires the issuance of an occupation order or would like to discuss how you should progress an application for an occupation order through the family courts with one of our hugely experienced family barristers, please contact us today.