In This Post
During separation it's common for disputes to arise around who can access or stay in the family home. If this happens you can apply to the court for an occupation order.
In this guide you'll learn:
- What is an Occupation Order?
- Am I eligible?
- How do I apply?
Let's get started...
What Is An Occupation Order?
An occupation order is a Court order that gives one person the legal right to live in or have access to a property, even if they don't own it.
It can grant exclusive occupation of the property to one person (known as the 'occupier') and set out conditions around how much time the other person (known as the 'non-occupier') can spend there. For example, an occupation order could give a mother and her children the right to live in the <bloglink>family home<bloglink> and stop the <bloglink>father<bloglink> from entering except at certain times.
It can also be used to completely ban a person from entering the property all together, for example where there has been violence against the other party.
Occupation orders are made under <bloglink>Part IV of the Family Law Act 1996<bloglink> and can be applied for by married or unmarried couples, or by same-sex partners.
Am I Eligible For An Occupation Order?
In order to get an occupation order, you'll need to show that you have some connection both to the property and to the person who is the respondent to your application. You must show, for example:
- You have a legal right to occupy the property, because you're the owner, tenant or licensee (this can include where you are not the owner, but you have had <bloglink>‘Matrimonial Home Rights’<bloglink> through your marriage and your occupation of the property as your home).
- You fall within the definition of an 'associated person' within <bloglink>sections 62-63 of the Family Law Act 1996<bloglink> ). This means, for example:
What Can An Occupation Order Do?
An occupation order can allow the applicant to:
- Enforce their right to occupy all or part of the property,
- Enforce their right to return to the property, if they've moved out or were ejected,
- Regulate who else can attend or stay at the property,
- Require someone to move out of or stay away from the property (even if they have a legal right to be there, such as owning the property).
The court can also make a wide range of other orders, including:
- Setting out who has to pay the property rent / mortgage, or pay for property maintenance (even if they are not the person in occupation),
- Determine what happens to property furniture or contents,
- Order that a person's right to occupy the property is not brought to an end by the death of a spouse, or by <bloglink>divorce.<bloglink>
The type of order that is needed very much depends on the circumstances of your case. Occupation orders are commonly used to protect someone from a spouse who has harassed them or been violent. They are also common in divorce or separation cases where one party has wrongly been <bloglink>ejected from the property<bloglink>, and needs to court to protect their rights of occupation.
Will The Court Grant An Occupation Order?
The Court takes granting occupation orders very seriously. They are a powerful order, as they can be used to exclude someone from a property they own or live in.
Therefore, the Court will apply two stringent tests before granting an occupation order:
1. The "Balance Of Harm" Test
The court will try to perform a balancing act, by weighting the harm which may be caused to the applicant (or any child) if the order is not made, against the harm caused to the respondent if the order is made.
The Court will be reluctant to interfere with the respondent's right to live in or access their own property. But, if they come to the conclusion that the applicant or a child are likely to suffer significant harm if the order is not made, then they are highly likely to make such an order.
2. The "Core Criteria" Test
The Court will also consider a number of other 'core criteria' such as the housing needs of each party, their financial resources, health impacts, and the needs of any children involved.
How Do I Apply For An Occupation Order?
You (or your solicitor) need to complete an occupation order application form and submit it to your local county court. The form will ask you to set out the reasons why you're applying for the occupation order and what conditions you want the order to contain, if any.
The form you need is the <bloglink>Form FL401<bloglink>.
You'll also need to attach a witness statement setting out your reasons for why you say an order is necessary. You can also attach any evidence (such as emails, text messages etc) to your witness statement.
What Happens At The Hearing?
If the hearing is made on notice (ie your respondent is made aware of the hearing beforehand), then both parties can attend the hearing and give oral evidence. If either party has a lawyer, they will also attend to represent their client.
After hearing the evidence the Judge will then make a decision on whether or not to grant the occupation order, and if so, what conditions (if any) should be attached to it.
If the Judge decides that an occupation order is necessary (after considering the "balance of harm" and "core criteria" tests), they will also set a date for when the order comes into effect.
The occupation order hearing can also be heard 'without notice', meaning the respondent is not informed of the hearing. This can be the case where there is a risk that the respondent might cause harm to the applicant if they were pre-warned about the hearing. If an occupation order is made at a 'without notice' hearing, the respondent will be given an opportunity to return to court at a later date and make arguments against the continuation of the order, or to try to overturn the order.
If you have been served with an occupation order, then it is important that you take legal advice as soon as possible. The occupation order will state what you are not allowed to do, and there are serious consequences if you breach the order.
How Long Can An Occupation Order Last For?
An occupation order can be made for a set period of time, or it can be 'indefinite'.
If the occupation order is made for a set period of time then it will state when it expires on the occupation order itself. The Courts often put the order in place for a maximum period of 6 months. An occupation order can also be varied (changed) by the Court if necessary.
If an occupation order is made 'indefinitely' then it does not have a set expiry date. This means that the order will continue until it is either varied or discharged (cancelled) by a further court order.
Can I Get An Emergency Occupation Order?
If you need an occupation order urgently (for example, if you are at risk of harm), then it is possible to apply for the order 'without notice'. This means that the respondent will not be given any prior warning about the hearing. In an emergency where there is a risk of immediate harm, such an application can be made within 24 hours. If the Court makes an order 'without notice' you'll have to return to court at a later date so that the respondent has an opportunity to object to the continuation of the order, or to apply to overturn the occupation order.
How Much Does An Occupation Order Cost?
Unlike most applications, there is no court fee for applying for an occupation order. However, if you use a lawyer you will still be responsible for paying for their <bloglink>fees for representing you.<bloglink>
What Happens If The Occupation Order Is Breached?
If the occupation order is breached (ie the respondent goes into the property when they are not supposed to), you will have to apply to Court for a warrant of arrest. You will need to give evidence to the Court showing that the order had been breached. If the Court orders a warrant of arrest, this can then be provided to the police who will remove to respondent from the property.
In some cases, where the occupation order was granted due to <bloglink>violence or threats<bloglink> perpetrated by the respondent, then the Court may attach a power of arrest to the original order from the outset. This means you will not need to apply to the Court if the order is breached, and can ask the police to immediately remove the respondent from the property. Breach of such an order carries a maximum fine of up to £5000, or up to 2 years imprisonment.
It is also important to note that if you breach an occupation order, this does not mean that the order will automatically be discharged. The order will remain in place until it is either varied or discharged by a further court order.
What Is The Difference Between An Occupation Order And A Non-Molestation Order?
An occupation order deals with who has the right to occupy a property, whereas a non-molestation order protects you from being harassed, threatened or assaulted by another person. Occupation orders are often made in conjunction with a non-molestation order. You can read more about non-molestation orders <bloglink>here.<bloglink>
Why Might I Need An Occupation Order?
If you are experiencing domestic violence or abuse, or there is a dispute over who has the right to remain in the property, then an occupation order can give you the legal right to occupy your home without the respondent being present. This can help to keep you safe, or give you some time to make decisions about your future.
How Serious Is An Occupation Order?
Occupation orders are a serious matter, as they can restrict a persons legal right to access their home. Breach of such an order is equally serious, and could result in a fine of up to £5000 or up to two years imprisonment.
What Evidence Do I Need For An Occupation Order?
To apply for an occupation order you will need to provide evidence to the Court showing that there is a risk of harm if the order is not made, or it is necessary for some other reason for the order to be made. This could be in the form of a medical report, police report or witness statements, video, images or text messages.
Can My Ex Just Walk Into My House?
No. If you have an occupation order in place preventing your ex-partner from accessing the property, it is a serious matter for them to breach that order and could lead to large fines or even imprisonment. Alternatively, if there are children involved, you could consider applying for a <bloglink>Prohibited Steps Order.<bloglink>