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An occupation order can remove one party from the home and can give a right to the other party to enter or remain in the home. It can be applied whether there is found to be domestic violence or not and there is simply a dispute as to who should occupy the property.
Removing a person from their home is a great infringement of their rights and the courts are meant to make this order only if it is deemed a necessity. It is only possible for an applicant to obtain an occupation order against a respondent to whom s/he is associated. If the applicant is married to the respondent or is entitled to occupy the property then s 33 of the Family Law Act 1996 should be used.
If the applicant is not entitled to occupy the property, is the applicant the ex-spouse of the respondent or is the cohabitant or former cohabitant of the respondent. If an ex-spouse then an application under s 35 of the Family Law Act 1996 is appropriate; if the cohabitant or former cohabitant then an application under s 36 is applicable; if neither the applicant nor the respondent are entitled to occupy the property then s 37 or s 38 may be appropriate.
An application for an occupation order can be made ex-parte (without the other party’s knowledge) or on notice, when the respondent is informed that an application has been made and can attend the court to argue their case regarding the application.
The factors that the court will take into account are the significant harm test as set out in s 33(7) of the Family Law Act 1993 where the court must ask itself what will happen if the court makes no order, is it likely that the applicant or child will suffer significant harm attributable to the conduct of the respondent. If the answer is no then the significant harm test is not satisfied. If the answer is yes then the court must consider what will happen if it makes an order, will the respondent or any relevant child suffer significant harm. If the answer is no then the court must make an occupation order. If the answer is yes then the question is whose risk of harm is greater.
If the significant harm test is satisfied then the court must make an occupation order. If not then the court must consider other factors set out in s 33(6) of the Family Law Act 1996 including the housing needs; the financial resources; the likely effect of any order or decision on the health, safety and well-being of the parties and relevant child; the conduct of the parties in relation to each other.
Courts are generally reluctant to make occupation orders and they are only meant to occur in exceptional circumstances and are seen as a draconian order but they are made at times when it is not readily apparent there are exceptional circumstances.
The breach of an occupation order is not a criminal offence unless a power of arrest has been attached to one or more clause of an order. Power of arrest is normally attached if it is a concern that a respondent has or may have used violence or threatened to use violence towards an applicant. Breaching an occupation order with a power of arrest could lead to up to two years in prison or a large fine (up to £5,000). When there is no power of arrest then an application for a warrant of arrest is necessary by the applicant and evidence will have to be provided which shows there is reasonable grounds to believe there has been a breach of the occupation order.