Occupation Order

An occupation order can be obtained in relation to the matrimonial home. Many people following a divorce often enter into a dispute with regards to who will have access to the matrimonial home and who will not. Occupation orders attempt to tackle the issues surrounding the matrimonial home and allow the court to make a decision with regards to living in the matrimonial home.

Article Contents

What is an occupation order?

An occupation order is a court order specifying who is and who isn’t able to live in the family home. Such an order can also specify who can enter the surrounding area. Occupation orders are commonly used where one spouse has changed the locks to the matrimonial home and will not allow the other spouse in. The purpose of the order could also be to gain the right to entry to the family home. An order can also specify which person will be responsible for paying the mortgage and the household bills.

An occupation order falls under the scope of Part IV of the Family Law Act 1996 and is used to protect people. More often than not an occupation order is used in cases of domestic violence where one person has been subject to violence or has been threatened.

What can an occupation order be used for?

As well as to exclude someone from the family home, an occupation order can also be used for:

  • Enforce the right to remain in the property
  • Require permission to enter and remain in the property
  • Regulate the occupation of the property
  • Prohibit, restrict or suspend the exercise of occupation in the property
  • Exclude someone from a defines area in which the property is located, or
  • Require the departure from the property.

An order is granted in serious circumstances as they can exclude someone from the home they are entitled to live in.

Who can apply for an occupation order?

In order to attempt to secure an order you will need to satisfy to the courts that you have some connection with the property which is to be included in the occupation order. This includes having contractual or legal benefit in the property or a right to occupy. You do not need to be named as an owner to have a benefit in the property and could have acquired a connection through your marriage or occupation of the property.

You will also need to satisfy that you have some relationship with the respondent or the other person of the order. This requirement is governed by s62 and s63 of the Family Law Act 1996. It covers spouses, civil partners, cohabitees, relatives or people with intimate personal relationship which is of a significant duration.

For an occupation order the property in question must also be or have been the home of both parties and was intended to be their home.

Which part of the Family Law Act should you apply under?

The criteria for applying for an occupation order is set out in various sections of the Family Law Act 1996.

You may apply for an occupation order under section 33 if you are entitled to occupy the property by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving you the right to remain in occupation. People can apply for an order under this section if they have home rights to the property. This section can be used by sole or joint owners or tenants and joint tenants of a property.

Under section 35 of the Family Law Act 1996 you can apply if you are a former spouse or civil partner with no existing right to occupy the property.

Section 36 allows you to make an application if you are a cohabitant with no existing rights to occupy the property.

If neither you nor your spouse are entitled to occupy the property you can apply by using section 37.

Section 38 is applicable if neither you nor you cohabitant or former cohabitant is entitled to occupy the property.

If you are able to satisfy one or more of the above criteria for an occupation order, then the courts will apply two tests before granting the order.

How to apply for an occupation order?

In order to make an application for an occupation order a form FL401 must be completed and lodged with the court. The is no Court fee for an occupational order, similar to non molestation orders.

When completing an application you must ensure you accurately complete your details, details of the respondent against whom the occupation order is made and provide details of the order you are seeking and the reasons for making the application.

You will be required to provide an occupation order witness statement which will be used as the basis of your application and will show your reasons for making the application so the court is aware of the background circumstances in order to allow it to carefully consider your application. You will then be required to make 2 copies of the completed occupation order form together with your occupation order witness statement and submit it to the court.

How long do occupation orders last?

Occupation orders are usually made for a specified period of time. These could also be made until the occurrence of a specified event or until a further order is made which extends the order already in place. Most occupation orders are made for a period of 6 months depending on the circumstances but can be extended on one or more occasions for a maximum of 6 months each time.

If you would like more advice on making an application for an occupation order or want information and advise specific to your individual circumstances, then contact us today and one of our family specialists will assist you further.

What is the criteria for an occupation order?

When applying for an order you must satisfy the three requirements which are:

  • You must have a legal or contractual benefit in the property or a right to occupy. This usually covers situations where you may not be named as a home owner but have matrimonial home rights through your marriage and occupation of the property as your home.
  • The property is or has been at some time the home of both parties and was intended to be your home.
  • Both you and the party against whom the order is made against are associated. This covers situations where you are either a spouse, civil partner or cohabitee, or you have agreed to marry or have had intimate personal relationship with one another for a significant period of time.

How does the court approach Occupation Orders?

At a hearing the court will apply two tests. The tests are the balance of harm test and the core criteria test.

When considering the balance of harm test at an occupation order hearing the court will be required to balance the harm caused to the applicant, the respondent and any children in the event an order was made or not to be made. Under section 33(7) the court must make an order if it appears to the court that the applicant or any child is likely to suffer significant harm attributable to the respondent if an order is not made.

If the applicant is entitled to occupy the property or are a spouse or a former spouse of the respondent and there would be a risk of harm to the applicant or a child, then the courts will grant an order. If however the applicant is not entitled to occupy the property as a cohabitant or a former cohabitant then the courts must simply have a regard to the balance of harm test. If an applicant is associated to the respondent in some other way and is not entitled to occupy the property, then they will not be able to make an application for an occupation order.

There are exceptions to the balance of harm test. These particularly apply when it appears that the respondent or any child is likely to suffer significant harm if the order is made, or the harm likely to be suffered by the respondent or the child is as great as or greater than the harm likely to be suffered by the applicant or child if the order is not made. When considering an occupation order if it can be proven that there is a risk of significant harm to a child then the child’s interests and needs will be the courts paramount consideration.

The second test at an order hearing is that of the core criteria. This is a test which the court may have regard to at any time when granting an occupation order even where they the balance of harm test has failed. This was confirmed in the case of Chalmers v John (1999).  The requirements of the core criteria test will depend on the applicants entitlement to occupy the property and their relationship with the respondent.

If the applicant is entitled to occupy the property then the core criteria to be considered under S.33 (6) are:

  • the housing needs and housing resources of each of the parties and of any relevant child.
  • the financial resources of each of the parties.
  • the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child; and
  • the conduct of the parties in relation to each other and otherwise.

If the applicant is not entitled to an occupation order but is a spouse or former spouse of the respondent, then the court may have regard to some additional factors. These additional factors of the core criteria test are:

  • the length of time since the parties lived together,
  • the length of time since the marriage was formally ended and
  • any ongoing ancillary relief applications or disputes as to the ownership of the property.

If the applicant is not entitled to an occupation but is a cohabitant or former cohabitant of the respondent, then the court may also have regard to:

  • the nature and length of the parties’ relationship,
  • whether there are or have been any relevant children,
  • the length of time since the parties’ relationship came to an end and whether there are any ongoing Schedule 1, Children Act 1989 maintenance

What happens at an occupation order hearing?

An occupation order hearing is held in private. In most cases only you and any legal representatives will be present. If you provided notice of you application to the respondent, then they may also be present at the hearing.

At the occupation order hearing the court will consider your occupation order form together with your order statement and any evidence you have provided.at the occupation order hearing the judge will also consider whether you are able to apply for an order and consider the balance of harm test and the core criteria test.

Following consideration of all information and evidence at the end of the occupation order hearing the court will make one of the following decisions:

  • request the respondent to provide an undertaking to do or not do something
  • request you to provide more information in support of your occupation order. If this is the case an interim order may be granted to allow you time to obtain all the information, or
  • issue the order.

If an occupation order is issued you will receive a copy from the court, and the court may either require you to serve the order on the respondent or alternatively agree to serve the documents on the respondent themselves.

How to win an occupation order?

In order to win an occupation order you need to ensure your application and witness statement is accurately completed.

This is why we strongly advice care is taken and legal advice is secured before making an application.

You need to ensure your need for an order is clearly detailed and explained together with providing evidence which is in your favour. At Kabir Family Law, our family lawyers in Oxford as well nationally can provide you with advice and guidance on how to best complete your order application and can provide further guidance and assistance should you need. Contact us today to discuss your enquiry further.

What if the Occupation Order is broken?

A breach of an occupation order is not automatically a criminal offence. However, the courts may attach a power of arrest to one or more provisions of the order. This will usually be the case if the courts feel the respondent has used violence or threatened to use violence. If an occupation order is breached then the respondent can be punished by up to 2 years in prison or face a fine of up to £5,000.00

Arrange a free consultation today to discuss an occupational order

Occupation orders can often be useful where you or your child are likely to suffer from harm. They can equally be harmful to the person subject to them who may need defending.

If you would like more advice on whether you are able to make an application order or want to find out what is involved with an occupation order then contact us today on 0330 094 5880 to discuss your options or let us call you back.