An Occupation Order is an Order that a Court can make, under Section 33 of the Family Law Act 1996, to determine who can remain living in a property, or defining who can enter certain parts of the home, if parties are unable to agree. This is often applied for by someone who has suffered domestic abuse and no longer wishes for the other party to live in the home because they are frightened of them and due to the abuse they have suffered, they require some protection. Although a Non Molestation Order can be applied for to prevent someone from coming near a person or property, this does not deal with who should live in the property.
Who can apply for an Occupation Order?
Not everyone can apply for an Occupation Order. In order to apply for an Occupation order the parties must be a classed as ‘associated persons’. Under Section 62-63 of the Family Law Act 1996 a person is defined as ‘associated’ with another person if they: -
- are or have been married to each other;
- are or have been civil partners of each other;
- are a cohabitant or a former cohabitant;
- live with or has lived in the same household, otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder;
- are relatives;
- have agreed to marry one another (whether or not that agreement has been terminated);
- have or have had an intimate personal relationship with each other which is or was of significant duration;
- have entered into a civil partnership agreement (as defined by section 73 of the Civil Partnership Act 2004) (whether or not that agreement has been terminated);
- is a party to the same family proceedings (other than proceedings under this Part).
What will the Court have to consider when deciding who can live in the property?
The decision the Court has to make in respect of who can live in a property is not an easy decision for them to make. The Court has to consider lots of different factors before deciding who can remain living there and who cannot. The Court applies what is called the ‘Balance of Harm’ Test.
The Court will consider; -
(a)the housing needs and housing resources of each person and of any relevant child;
(b)the financial resources of each person;
(c)the likely effect of any order, or of any decision by the court not to make an Occupation Order, on the health, safety or well-being of each person and of any relevant child; and
(d)the conduct of each person in relation to each other and otherwise.
The Court have to consider the risk to any person including children and therefore if the Court believe that the applicant (person applying for the Order) or any relevant child is likely to suffer significant harm attributable to conduct of the Respondent (opposition) if an order is not made then the Court should make the Order.
The Order should not be made however if the Court believes that:-
(a)the respondent or any relevant child is likely to suffer significant harm if the order is made; and
(b)the harm likely to be suffered by the respondent or child in that event is as great as, or greater than, the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made.
If an occupation Order is made, it does not change the ownership of the property, it simply confirms who can remain living in the property. The Court can also make an Order as to who shall pay the mortgage or rent, repair and maintain the property. The Court will only make an occupation Order if it is really necessary as it prevents a person who is legally entitled to occupy a property from living in their home.
An Occupation Order can only be made for 6 months.
How do can you apply for an Occupation Order?
You would need to complete an FL401 application and send this to the Court. There is no Court fee payable. You will need to also prepare a statement in support of your application.
How quickly can you apply for an Occupation Order?
You can apply for an Occupation Order on an emergency basis if you or a child is at significant risk of harm. You can apply without notice to the Respondent if you are at risk of harm or if the Respondent knew you were applying for an Occupation Order and there would be a risk that they would pressure you not to make an application or withdraw it if it has already been made. If there is no immediate risk of harm then you would apply on notice which meant that the Respondent would receive a copy of your application from the Court and a hearing would then be listed for you both to attend.
What legal fees would I need to pay if I instruct a Solicitor?
Legal aid is available for Occupation Orders. It is however means and merits tested which means that your finances will be assessed as will the merits of your application. Legal aid is always available for Non-Molestation and Occupation Orders regardless of how much you may earn. However depending on how much you earn, you may need to pay a financial contribution towards your legal fees. In regards to merits, the Legal Aid agency will consider the likelihood of your application being successful. If you can prove that your case has merit then the Legal Aid Agency will grant you legal aid. If this is something you wish to consider please contact the family team who will be able to assess you for Legal Aid.
If you feel you need to apply for an Occupation Order or you have been served with an application for an Occupation Order, our specialist Children and Domestic Abuse Team will be able to advise you on your next steps.
Please do not hesitate to contact us on 01788 579579 or 01295 270999 or at family-children@brethertons.co.uk
Alternatively, please contact one of the partners in our Children and Domestic Violence team directly. Kim Lehal on 01788557670 or Simon Craddock on 01295661430.