Explaining Occupation Orders

Protecting your family in times of difficulty
Under the Family Law Act 1996, the Court can make an Order to state who has the right to occupy the family home or, if necessary, who is to be excluded from it. Occupation Orders are often used in urgent situations such as where children are at risk of having nowhere to live or where one partner is abusive towards the other.

What does an Occupation Order contain and how does it work?
The Order will be sought by one party who wishes or needs to occupy the former family home, often with the children. It can only be made in respect of a property which is, or was, the family home. The Order will not alter the structure of the legal ownership of the home, but will merely set out who is able to live in it. Where you are joint owners of the property, legally you are both entitled to enjoy occupation of it so a Court Order is required if one party seeks to exclude the other.

They are intended as a short-term measure and many last between 6 and 12 months; however, it is possible to extend an Order if necessary.

Common terms that an Occupation Order may contain include (but are not limited to):

• an enforced, Court-Ordered right to remain in the family home;
• a right to return to the property if one party has been locked out unfairly;
• an order to exclude one party, regardless of their legal rights;
• orders as to who is to assume responsibility for rents or mortgage payments and general maintenance of the property.

Because of the power to exclude one party from entering or living in the home, Occupation Orders are often used as a tool in domestic abuse cases. They can help to bring a level of stability to a situation, particularly where children also need to be protected and cared for.

Applications for Occupation Orders are made by way of a Court Claim Form. Applicants will need to compile a witness statement setting out their circumstances and arguments for occupation.

The Court’s decision
When deciding whether or not to grant an Occupation Order, the Court will look at both parties’ financial situations as well as the potential outcomes of either party losing their occupational rights and how this may affect the parties’ physical or mental health. They will always assess the needs of children, ensuring that they have somewhere safe and secure to live. There are also additional factors considered by the Court which are dependent on whether you were married to the other party, cohabitating or in a civil partnership. In addition, the Court must look at the behaviour of each party and it may make a judgment based on a ‘balance of harm’ test:

“what is the likelihood of significant harm being caused to either partner and your children if an Occupation Order is granted, balanced against the likelihood of significant harm being caused if an Occupation Order is not made”

If an Occupation Order is granted, you are able to change the locks on the property

Who can apply?
You don’t need to own a property to gain an Occupation Order; the Court can grant an Order over a rented property or over another property in which the applicant, their spouse, partner or civil partner has a financial interest.

Where a property is rented, the Court will grant ‘home rights’ to a spouse or civil partner where that person is not listed as a tenant on the tenancy agreement. Home rights include the right to remain in the property and to pay the rent on it. However, ‘home rights’ are not available where the parties were only cohabitating.

Other related Orders
Occupation Orders are often used in conjunction with other proceedings. For example, if a divorce is ongoing, once the Decree Absolute has been granted, an Eviction Order can be served if an Occupation Order is not already in existence to permanently remove the non-residing partner from the property if they refuse to vacate voluntarily. Non-Molestation Orders (otherwise known as injunctions) can also be issued alongside Occupation Orders where one party has been suffering abuse at the hands of their partner, spouse or civil partner.

Our family and matrimonial specialist Gillian Lavelle is pleased to offer a free initial 30-minute appointment for all new cases.

To arrange your meeting, call 01942 206060 today.