Understanding Occupation Orders

If you have left an abusive relationship, one of your priorities after getting a Non-Molestation Order will be securing safe housing for you and your children. With the help of an experienced Family Law Solicitor, you may be able to apply for an Occupation Order under sections 33 and 35 to 38 of the Family Law Act 1996 which, if granted, will give you and your children the legal right to occupy your family home and exclude your spouse/partner from living there or coming within a certain distance of the property.

In this article, we discuss the legal aspects of applying for an Occupation Order and the positive benefits it can have for you if you are the victim of domestic abuse.

What are the eligibility criteria for applying for an Occupation Order:

To qualify for an Occupation Order, you must meet one of the following criteria (your Solicitor can explain some of the more complicated elements stated below ):

• You must have a legal right to occupy the property either because you have a beneficial interest or estate, you have a contract with the owner, you have home rights, or you benefit from any other enactment that gives you a right to live in the home.

• You are the former spouse or civil partner of the Respondent (the person on the receiving end of the Occupation Order) and the property was intended to be the home of you and the Respondent.

• You and the Respondent lived together and the property was intended to be the home of you and the Respondent.

• Although neither you nor the Respondent have an existing right to occupy the property, the property was the home of you and the Respondent. An example of a situation that would fall into this category is that you and the Respondent were living in a property given to you by the Respondent’s parents; however, no tenancy agreement was put in place.

What factors must the Court consider before granting an Occupation Order:

Occupation Orders are incredibly draconian in that they prevent a person with the legal right to occupy their home from living there. Therefore, when deciding whether to grant an Occupation Order, the Court employs a delicate balance between safeguarding the Applicant and any children while respecting the right of the other party not to be unjustly evicted.

Before granting an Occupation Order, the Court will consider:

• What is known as the 'balance of harm' test. This involves weighing the harm suffered by you and your children if the order is not granted against any harm the Respondent may endure if the order is made.

• The core criteria test, (along with other considerations) outlined in section 33(6) of the FLA 1996. The Court must take into account various factors, including but not limited to:

o The housing needs and resources of everyone involved, including your children.

o The financial resources of you and the Respondent.

o The potential impact of any order, or the Court's decision not to exercise its authority to issue an order, on the health, safety, or well-being of anyone involved, including your children.

o The conduct of you and the Respondent towards each other and in other aspects.

If you lack the entitlement to reside in the residence but are still a spouse or former spouse of the Respondent, the Court may consider additional factors, including:

o The duration since you last lived together.

o How long ago you divorced.

o Any ongoing financial remedy applications or disputes regarding property ownership (as per section 35(6) of the FLA 1996).

• In cases where you, as the Applicant, are not entitled to occupy the dwelling but you are a cohabitant or former cohabitant of the Respondent, the Court may also take into account:

o The nature and duration of your relationship.

o How long ago the relationship ended.

o Your children’s situation, for example, is the property in question close to their school or other relations.

o The presence of any ongoing applications related to maintenance under Schedule 1 to the Children Act 1989 (as per section 36(6) of the FLA 1996).

What is the impact of an Occupation Order:

A successful application for an Occupation Order can have profound consequences everyone involved, including:

• Providing immediate relief by granting you, as the Applicant, the right to stay in the family home while excluding the Respondent.

• Ensuring stability and continuity for your children by granting you primary care while allowing the Respondent limited access to the property.

• Determining who remains in the family home and the associated financial responsibilities, such as mortgage payments or rent.

How long do Occupation Orders last?

Occupation Orders are typically made for a specified period, with the option to extend them in increments of six months. Breaching an Occupation Order, unless accompanied by a power of arrest, is not criminal. A power of arrest is usually attached in cases involving domestic abuse.

Seeking Legal Assistance:

Given the high threshold the Court sets for obtaining an Occupation Order, seeking advice from an experienced Family Law Solicitor is imperative. Whether applying for the order or defending against it, your Solicitor will ensure that your case is presented effectively, increasing the likelihood of a favourable outcome. As these legal proceedings significantly impact the lives of those involved, navigating them with professional support is not just advisable but essential for a fair and just resolution.

If you have any questions regarding this article, please call us on 0300 3732424.

If you are in immediate danger, contact the police on 999 immediately.

You can access support and information at Home - Refuge and ManKind Initiative - Supporting Male Victims of Domestic Abuse