What is an Occupation Order ? 

An Occupation Order is a court order regulating who can live in the family home or enter certain areas. It is granted under Part IV of the Family Law Act 1996 and allows one party to occupy the family home for a specified period. An occupation order can also order the party who has been restricted from residing at the family home to bear responsibility for payment of the rent or mortgage on the home. 

Its primary purpose is to provide protection and safety for individuals who are at risk of harm, violence, or harassment from their partner or other family members.

What does an Occupation Order cover ?

An Occupation Order can cover various aspects related to the occupation of a family home. These include: 

• Who gets to stay in the house
• Who has the right to enter certain areas of the property
• Who is responsible for paying rent/mortgage and other household expenses
• Whether or not the order allows one party to force out another from the property
• The duration of the order (temporary or permanent)
• Any other relevant provisions for maintaining safety and security within the home

It is important to note that an Occupation Order does not determine property ownership rights but instead focuses on occupation and use.

Who Can Apply for an Occupation Order?

An Occupation Order can be applied for by any person who is an associated person of the respondent and has the right to occupy a property, including:

• Married or civil partners
• Co-habiting couples
• Those in a same-sex relationship
• Former spouses/partners
• Family members (if they have lived in the property for at least six months)

In cases with more than one applicant, the court will determine who has a stronger claim to the property and needs more protection.

The Implications of an Occupation Order

An Occupation Order can significantly impact both parties involved and children living in the family home. It may result in:

• One party being forced to leave their home
• Financial implications for both parties
• Changes in childcare arrangements and access to shared assets 

Considering all options and seeking legal advice before applying for an Occupation Order is essential.  While it may provide necessary protection in cases of domestic violence or harassment, it can also have long-lasting consequences on relationships and living arrangements.  

The Legal Framework for Occupation Orders

An Occupation Order is governed by Part IV of the Family Law Act 1996, which outlines specific criteria that must be met to qualify for an Occupation Order. 

These include:

• The person applying should legally own or benefit from the property.
• The house must either be, have been, or was intended to be the applicant’s and respondent’s home.
• The respondent must have a right to occupy the property.

One of the following sections must apply to the situation:

• Section 33: The applicant has a beneficial interest in the property, a contract or registered home rights.
• Section 35: The applicant is a former spouse or civil partner with no existing occupation rights.
• Section 36: The applicant is a cohabitant or former cohabitant with no existing occupation right.
• Section 37: Neither the spouse nor civil partner is entitled to occupy.
• Section 38: Neither the cohabitant nor former cohabitant is entitled to occupy. 

Duration of Occupation Orders

Typically, these orders last for six months. However, the court can extend them for additional six-month periods at its discretion. During this time, the person granted the right to occupy can:

• Pay the mortgage
• Intervene in possession proceedings as if they were the spouse or civil partner.

Provisions Attached to Occupation Orders

The court also includes specific provisions with an order. For example, the applicant must have:

• The privilege of not being barred from the home
• The right to enter and remain in the house, with the requirement that the other former spouse permits this.

Steps to Obtain an Occupation Order

The process of applying for an Occupation Order is as follows:

• Seek legal advice: Before making an application, it’s essential to seek legal advice from a family law solicitor who can guide you through the process and ensure all necessary criteria are met.
• Fill out the appropriate forms: You must fill out form FL401 (application for non-molestation order) or form FL401A (application for occupation order). These forms require detailed information about the situation and your relationship with the respondent.
• Attend a court hearing: The court will review your application and may schedule a hearing where both parties can present their case. If there is an immediate risk of harm, the court may issue a temporary Occupation Order until the entire hearing.
• Final hearing: A final hearing will occur, where both parties can present their evidence, and the court will decide whether to grant an Occupation Order.
• Enforcement of the order: If granted, both parties must comply with the terms of the Occupation Order. Not adhering to the order’s terms can lead to repercussions in the realm of law. 

Factors Considered in the Granting of Occupation Orders

The court must have regard to the balance of harm test and the core criteria test. 

The balance of harm test means that when deciding to grant an occupation order, the court has a duty to balance the harm that would be caused to both the applicant, respondent and any relevant children, if the order was made or not made.

The court deliberates on several elements when granting an occupation order. Some of these factors include:

• The housing needs and available resources of each individual involved, including children.
• The financial situation of each party.
• The likely effect of any order, or any decision by the court not to exercise its powers, on the health, safety or well-being of the parties and any relevant child.
• The conduct of the parties concerning each other and otherwise.

Consequences of Breaching an Occupation Order

Breaching an Occupation Order is a serious offence that can have substantial consequences, including:

Criminal Proceedings

A breach of an Occupation Order is a criminal offence under the Domestic Violence, Crime and Victims Act 2004. The offender can be arrested and charged, potentially leading to a criminal record.

Imprisonment

If found guilty, the offender can face imprisonment. The maximum sentence is up to five years.

Fines

The court can levy a monetary penalty on the person who has committed the offence. The penalty amount depends on the breach’s severity and the offender’s financial situation.

Community Service

Sometimes, the court may order the offender to perform community service as punishment.

Injunctions

The court can also issue further injunctions to prevent other breaches, which could impose additional restrictions on the offender.

Damage to Reputation

A breach of an Occupation Order can damage reputation, mainly if the offender is in a professional field where criminal records are scrutinised.

Impact on Child Arrangements

A breach could impact child custody arrangements, with the court viewing the offending party as potentially unsafe for child custody or visitation.

Need Assistance? Consult with Notta Taj Law

If you face the daunting process of applying for an Occupation Order or dealing with the implications of an existing one, remember – you do not have to go through it alone. At Notta Taj Law, we specialise in family law and are committed to providing practical, sensitive, and expert advice. Our expert team understands the complexities of Occupation Orders, and we are here to guide you through each step of the process. 

So, why navigate this challenging journey alone? 

Contact Notta Taj Law today, and let us help you secure a safer, more stable future.