Services

When should I apply for an occupation order?

An occupation order is made when a decision needs to be made regarding who is and who is not allowed to live in the family home, and access or enter the surrounding areas of the home. If you are married and share a home with your spouse but are in the midst of a dispute about who should be allowed to live there as a result of the relationship breaking down, you will need to apply for an occupation order. Alternatively, if you have been in a relationship with your partner for a significant period of time and lived together in the home you can also apply.

Often, an occupation order is necessary in the cases of domestic violence and can be used to protect you if you have suffered from abuse from your spouse, or have been threatened with abuse. The order can then, instruct the perpetrator to leave the property.

It could be, that as the result of an incident or dispute, one spouse may wish to stay in the home and change the locks or block entry to the other spouse in some other manner. Therefore, the order can also allow one spouse to gain entry into the home.

The order can also specify who should be responsible for paying the mortgage and household bills if necessary.

Who can apply for an occupation order and in what circumstances?

You may apply for an occupation order In the following circumstances:

• 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.

What is the process of making an application for an occupation order?

As with non molestation orders, there is no court fee for the application of an occupation order. An application will be completed by us and sent to the court along with a witness statement setting out why you are making the application and what terms you seek to be laid out in the order. In order to make the application, the following criteria must be met:

• You must have a legal or contractual benefit in the property or a right to occupy. A right to occupy covers situations where you may not be named as a home owner but you 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’. You must either be a spouse, civil partner or cohabitee, have agreed to marry or have had intimate personal relationship with one another for a significant period of time.

There will be a hearing at which the Court will determine whether or not an order should be granted. The Court will consider what harm may be present toward the applicant, their spouse and to any children if an order is or is not made. If there are children involved who are at risk of harm from the respondent, the court must make an order. The childs best interests will be the courts primary consideration.

The court will also consider other factors such as the needs and resources of the parties and children in relation to their housing needs, their financial resources, the effect of an order on the health, safety or well being of the parties and the children and the overall conduct of the parties towards each other. The period of time which the parties have been living together as well as how long it has been since the marriage ended may also be considered, as well as any other applications in relation to the property which may be ongoing.

 Enforcement

The court can attach a power of arrest to one or more terms of the order, particularly if domestic violence is found to be an issue. In these circumstances, the respondent can face a punishment of up to two years in prison or a fine of up to £5000.

If you require further advice, information or assistance regarding the service outlined above, please get in touch below: