An occupation order is a court order that regulates who can live in the family home. This blog will discuss all the details, including what an occupation order can cover, who can apply for one, and how to apply.
What is an occupation order?
Under sections 33 and 35 to 38 of the Family Law Act 1996 (FLA 1996), the court has the power to decide who should and should not reside in all or part of the family home. This is an occupation order. It is important to note that it is not limited to the property itself. It can also exclude a person from the area around the home.
Furthermore, the court can also make decisions about who should be financially responsible for the mortgage or rent payments when considering making an occupation order.
Occupation orders are often used in cases where there are allegations of domestic abuse. They can however be used to regulate the legal living arrangements of parties. Victims of abuse can also apply for something called a ‘Non-Molestation Order’. We will be writing a blog on non-molestation orders soon. Occupation orders are draconian in nature owing to the power which can be deployed by the court when removing someone from their own home. Hence, the threshold for proving this as a necessary and last resort is high.
Who can apply for an occupation order?
There are three requirements to check before you apply for an occupation order. If you are applying for an order you are known as the applicant. The other person is known as the respondent.
In order to apply, the following three requirements must be met:
- The property must be the home of the applicant and the respondent.
- The applicant must have the right to occupy the property. This means that they must be the joint or sole owner, or they must have ‘matrimonial rights’ from the marriage and occupation of the property as their home.
- The applicant and the respondent must be ‘associated’.
The last requirement might sound strange but ‘associated’ does have a specific meaning in this context. Most people rely on one of the first few conditions set out below. The court is concerned with ‘associated’ persons in a legal sense. Legally, you are ‘associated’ with another person if:
- you are, were or intend to be married (or civil partners) to each other
- you are or were cohabitants (live together)
- you live or have lived in the same household in a familial relationship or if without that familial connection, you could apply if ‘unconnected’ with any of the other persons living in the same household (i.e. you or them are not a tenant, landlord, employee or boarder)
- you are close family members
- you have or have an intimate personal relationship of significant duration with each other
- you have children together and at least one of you is the parent and the other has parental responsibility for the child. If the children have been subsequently adopted, at least one of you must be a natural parent and the other must have applied or already be the children’s adopted parent.
- you are both taking part in separate family proceedings (which are the same i.e. you are both involved in the same matter outside of the potential application for an occupation order).
These requirements can sometimes be confusing and it will depend on each individual case. At Sears Tooth, we can discuss your situation and help you to decide if applying for an occupation order is the right thing for you.
When will the court grant an occupation order?
Occupation orders can have very serious consequences – they can prevent someone from accessing a home that they are legally entitled to. Therefore, the court will need to be convinced that the applicant will suffer significant harm if the order is not made.
When making its decision, the court will think about the balance of harm. The court must make an order if it appears that the applicant (or any relevant child) is likely to suffer significant harm attributed to the respondent conduct if the order is not made.
The court should also consider the following factors:
- The housing needs and resources of the parties and children,
- The financial resources of the parties,
- The effect of an order (or a decision not to make an order) on the health, safety or well-being of the parties and children,
- The conduct of the parties.
How to apply for an occupation order
To apply for an occupation order, you must complete a Form FL401.
In an emergency, an occupation order can be made in as little as 24 hours. If you are worried, our experienced team of lawyers can help you with your emergency application. It is now commonplace for the judge to automatically order a return date for cases brought on an emergency and without notice basis, so that the respondent is given the opportunity to defend their position.
What happens if the respondent breaks the occupation order?
Breaching an occupation order is not automatically a criminal offence. However, it can result in a fine or prison sentence if the court attached a power of arrest when making the order. The court may attach a power of arrest if the respondent has used or threatened violence against the applicant.
However, if there was not a power of arrest attached to the order, and the respondent breaches the order, you can apply to the court for a warrant of arrest.
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To get expert advice on this issue and more, please contact us today on enquire@searstooth.com or on +44 (0)20 7499 6699. Your enquiry will be treated in strict confidence by our experienced team.
