An occupation order is a court order that is used to regulate who can live in the family home.
What does an occupation order cover?
The order enforces who has the right to live in the home, who is excluded from it, and it can also regulate who can enter the property and its surrounding areas.
It can be used to gain the right to a return to a property, for example, if a spouse has changed the locks and is denying you access to the family home.
Or it can be used to help clarify the right for one party to remain in the house and who is going to pay the mortgage and bills. However, it does not change the financial ownership of the property.
The order can also set out who lives in which parts of the home, (if you both need to live in different parts of the same house).
Why might I need an occupation order?
An occupation order is often used in circumstances where there has been domestic violence as it decides who can live in the house.
Under the Family Law Act 1996 (section 33 and 35 to 38), victims of abuse can apply for a non-molestation order which prevents the victim being pestered, harassed or molested, but it does not deal with the issue of who can occupy the family home. An occupation order offers that protection.
Who can apply for an occupation order?
Occupation orders are not granted lightly, and three requirements must be met:
You (the applicant) must have a right to occupy the property. I.e. you must be the joint or sole owner or tenant, or you have “matrimonial home rights” due to your marriage and occupation of the property as your home.
The property has been the home of you and the other person (the respondent)
You and the respondent must be “associated” (S62-s63 of the Family Law Act 1996), i.e. you must be:
Married or in a civil partnership,
Formerly married or in a civil partnership,
Engaged to be married or be in a civil partnership,
In a relationship for more than six months,
A close family member,
The children (living in the home) parent or grandparent.
What are the criteria for getting an occupation order?
The court will grant an order of occupation if it believes the applicant will suffer significant harm if the order is not made.
An occupation order will only be granted in serious circumstances because it effectively prevents a person who is legally entitled to live in their own home from doing so.
What does the court consider when making their decision?
The court considers the housing needs and finances of the parties and their behaviour along with the safety and wellbeing of children and the mental and physical health of the applicant.
They will also apply the balance of harm test, which balances the harm the applicant or child would suffer if the order were not granted.
How to apply for an occupation order?
To apply for an occupation order, you need to complete a Form FL401 “Application for a non-molestation order/an application for an occupation order” and file this at Court.
How long does it take to get an occupation order?
An application for an occupation order can be made in 24 hours in an emergency.
How much does an occupation order cost?
There is no requirement to pay a fee to file for an occupation order to the court. There will be solicitors fees to consider and the legal costs can vary depending on whether or not the case is defended and a contested final hearing is necessary. In these cases, Legal Aid can be available.
Unfortunately, Stowe Family Law does not have a contract with the Legal Aid Agency and is therefore unable to offer legal aid to our clients.
There is a searchable list of approved legal aid solicitors and law firms on the government’s legal aid website.
How long do occupation orders last?
Occupation orders are made for a specified period and can be extended for a maximum of 6 months at a time.
What happens if the occupation order is broken?
Breaking an occupation order is not automatically a criminal offence unless a power of arrest has been attached to the order. If this is the case, then breaking the order can result in a fine or prison sentence.
A power of arrest is attached to the order by the court if the respondent has used violence or threatened violence against the applicant.
If there is not a power of arrest attached to the order, then you can apply to the court for a warrant of arrest. To achieve this, you may have to give evidence and satisfy the court that there are reasonable grounds to believe that the respondent has breached the order.
Occupation orders are often used to protect the victims of domestic abuse.
If you are experiencing domestic abuse, violence or other forms of control in your relationship, please do seek help.
You are not alone, and there are several helplines at the bottom of this article.
If you or anyone with you is in immediate danger, please call the police 999.
Get in touch
If you wish to make an application for an occupation order or you would like further advice, please do contact our Client Care Team here to speak to one of our specialist divorce lawyers.
National Domestic Violence Helpline – 0808 2000 247
The Men’s Advice Line, for male domestic abuse survivors – 0808 801 0327
The Mix, free information and support for under 25s in the UK – 0808 808 4994
National LGBT+ Domestic Abuse Helpline – 0800 999 5428
Samaritans (24/7 service) – 116 123
Please note that Stowe Family Law does not necessarily endorse the organisations listed.