What does an Occupation Order cover?

Occupation orders have a very large scope and could do one or more of the following things:

• Enforce a right to stay in the family home
• Enforce a right to return to the family home, perhaps you've been locked out when you shouldn't have been
• Exclude someone from the family home even though they have a legal right to be there, for example, excluding a spouse because of their violence and abuse
• Set out who has to pay the rent or mortgage and repair and maintain the family home
• Give a right to stay in the family home for a specified period and prevent you from being evicted during that time
• Set out who lives in which parts of the home, where you both have to live in different parts of the same home
• Ensure home rights are not brought to an end by the death of a spouse or civil partner or by the ending of the marriage or civil partnership

Who can apply for an Occupation Order?

To start off with, under the Family Law Act you have to be "associated" with the other person (known as the respondent) in one of the following ways:

• You are or have been married to or civil partners of each other or have agreed to marry/enter into a civil partnership
• You have lived together in the same household in a family scenario
• You have had an intimate physical relationship of significant duration
• You are parties to the same family proceedings

If you were married/in a civil partnership with the other person you are entitled to apply as of right, irrespective of any right to occupy the home, even if you are divorced/have obtained dissolution. You are also entitled to apply as of right if you were cohabiting or intending to cohabit a home.

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

If you are, by definition, an associated person, you must also satisfy other criteria found in various sections of the Family Law Act in order to apply for an occupation order:

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. You are also eligible to apply under this section if you have home rights in relation to the property. For example, you can apply if you are the sole or joint owner, or the tenant or joint tenant of the property.

Section 35 - If you are a former spouse or former civil partner with no existing right to occupy the property.

Section 36 - If you are a cohabitant or former cohabitant with no existing right to occupy the property.

Section 37 - If neither you nor your spouse or civil partner is entitled to occupy the property, you can apply under Section 37.

Section 38 - If neither you nor your cohabitant or former cohabitant is entitled to occupy the property.

If you satisfy one or more of the above criteria and apply for an occupation order, the court must apply two tests before it makes a decision about whether to grant the order.

How does the court approach Occupation Orders?

This depends on which section of the Act you are applying under. However, in general terms the Court will apply two tests, the “balance of harm” and the “core criteria” tests which look at housing needs and resources of the parties and any child, financial resources, conduct and the likely effect of the Order on the health, safety and well-being of any party or relevant child.

Where the relationship had already broken down the Court will also look at the nature of the relationship, how long the relationship lasted and how long the parties have been apart for. The Court will also consider what other legal remedies are available and what proceedings have been or are intended to be issued.

Immediate Orders can be made, but throwing someone out of their home is regarded as a draconian step which should not normally be made without giving the other person an opportunity to be heard.

Case law is helping this area of law to evolve and to read about some interesting cases see our Occupation Order Examples.

How long does the Occupation Order last for?

The Order can be limited up to 6 months in some cases or up to an indefinite period, depending which part of the Act you apply under. However, in practice it is unlikely to be for more than 6 months. During that time you need to sort out ownership of the home, so it is important that you keep momentum and do not stop once the Order has been obtained if you are married or own or rent the home together. Extensions to the Order can be made in certain circumstances, but this is not guaranteed.

How much will it cost?

An Occupation Order has no court fee, so it is free to apply for one, however if you use a solicitor, you will need to pay their fees for helping with the application.

What if the Occupation Order is broken?

Breaking an Occupation Order is not automatically a criminal offence, but a power of arrest can be attached to one or more of the provisions of the order. The court will attach a power of arrest if it appears to them that the respondent has used violence or threatened to use violence towards the applicant. The penalty for breaching an occupation order is punishable by up to two years in prison or a fine of up to £5,000.

If a power of arrest is not attached to the order, the applicant may have to apply to the court for a warrant of arrest. The applicant will have to give evidence and satisfy the court there are reasonable grounds to believe that the respondent has breached the order.

What to do next?

This area of law can be confusing, as depending on your situation, you need to apply under different sections of the Family Law Act, so we advise you to speak to a solicitor to get some initial advice before you apply for an Occupation Order. Our initial advice is free and could ensure you are successful in your application. Contact us now on 01935 823883 to discuss how we can help you.