Home Personal Family Law Applying for an Occupation Order

Applying for an Occupation Order

If you are a victim of domestic violence, you may be able to apply to the court for an injunction restricting or preventing access to your family home for the person who abused you. This type of injunction is called an occupation order.

Under the Family Law Act 1996, occupation orders are granted by the courts to decide who, on a short-term basis, can live in the family home and enter the surrounding area.

What does an Occupation Order do?

Under an occupation order, an individual can be excluded from the property or part of it, even if they have a legal right to be there. If the individual is only excluded from certain parts of the house, the order will set out the areas of the home for each party to live in.

For example, if you have left the family home because of domestic violence, you can apply for an order to enforce your right to return while temporarily removing the rights of your abuser to access the property. It can also be used to enforce your right to stay in the family home for a specific time frame and protect you from being evicted during that time.

Under the order, the court can also state who has to pay the rent, mortgage and bills, and maintain the property. Occupation orders do not however deal with ownership or financial interests in the property.

Who can apply for an Occupation Order?

You can apply for an occupation order if you are associated with the person you are seeking the order against.

The person would be classed as an associated person to you if:

  • You are/were married or in a civil partnership
  • You live or have lived together
  • You are/were engaged
  • You are related
  • You have a child together

To apply, you can be the sole or joint owner of the home, or the tenant or joint tenant of the property. You can only apply if you have a right to occupy the home, for example:

  • If you are the property owner and you live there or intended to live there with the individual you are seeking the order against.
  • If you have ‘matrimonial rights’, that is, you are living in the property or intending to live in the property, are neither the owner nor the tenant of the property and are married to or in a civil partnership with the owner of the property.
  • If you live or intended to live in the property which is owned by the person you cohabit or cohabited with.

Applying for an occupation order

If you are eligible for an occupation order, you will need to make an application to the court for an order to be granted.

This requires form FL401 to be completed and submitted, together with your witness statement detailing the grounds for the application, such as the type of abuse you have experienced.

If you need immediate protection, you should ask for an emergency order when you apply. In this case, you don’t have to inform the person you are seeking the order against, but you should include the reasons why you are seeking an emergency order in your witness statement.

These documents must then be sent to the court, and a hearing will then be arranged to decide on the application.

How does the court decide whether to grant an occupation order?

The courts take a very serious approach to issuing occupation orders, looking closely at the facts of the case before agreeing to take away an individual’s rights to access their home, by balancing against the imperative to ensure the safety of all concerned.

The court will apply two tests to the facts of your case: the balance of harm test and the core criteria test.

The court will first balance the harm caused to the applicant, the person the order is being made against, and any relevant children if the order is not made.

The court must make an occupation order if it appears that the applicant or any relevant is likely to suffer “significant harm” if the order is not made.

The applicant may fail the test if the court believes that any relevant child is likely to suffer “significant harm” if the order is made.

If the test fails, the court can make an occupation order under the core criteria test (Chalmers v John [1999]).

The core criteria test looks at the housing needs and resources of the parties and children, financial resources, the likely effect of the order on the health, safety and well-being of the parties and the children, and the conduct of the parties.

If the applicant is not entitled to an occupation order under the balance of harm test, the court will also consider the length of time since the parties lived together and since the relationship was brought to an end, the length of the relationship and whether there are any relevant children.

It’s important to note that a breach of an order is not a criminal offence, unless the court has attached a power of arrest to the occupation order.

The court will grant the occupation order for a specific period. Typically this covers periods of 6 or 12 months. During this time you will be required to address a long term solution. This may involve seeking a different court order or finding alternative accommodation.

Occupation orders can only be extended beyond 12 months if you have a legal right to stay in the home. For example, if you are a cohabitant with no entitlement to occupy the property, the order may only last for six months and can only be extended once.

When should I seek legal advice?

Applying for an occupation order could help to protect your right to live safely in your home for a limited period of time. Applications are rarely straight forward, as such it is critical to seek legal advice for your situation as early as possible, to ensure an occupation order is the best course of action for you. Depending on your circumstances, you may also need to consider other actions such as a non-molestation order, which prevents the person you are seeking the order against from using or threatening violence, intimidating or harassing you.

An experienced family law adviser can also help with making a court application that effectively represents your case.

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