In this article, we discuss how an occupation order can be used to protect yourself and your children and ensure your physical and emotional safety.
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An occupation order is an order of the court to regulate who can live in the family home when your relationship has broken down. The law aims to protect people suffering from domestic abuse and ensures they can stay in the family home free from harm from the other party. It can also deal with who pays the mortgage or rent, and outgoings, who must maintain the property, and whether the person occupying the property should pay ‘rent’ to the other party. Although, the number of cases where rent is paid, are rare.
Occupation orders are typically granted in only serious situations because such an order is seen as particularly draconian, as it restricts someone’s legal right to live in their own home. For this reason, there is a strict set of criteria to fulfil before an order is granted.
Who can apply for an occupation order?
Under the Family Law Act (FLA), you must be ‘associated’ with the other person, which is defined as:
- Any person you have been married to or civil partners with, or engaged to
- You have lived together as a family
- You have been in an intimate relationship
The part of the FLA that you apply under depends on the circumstances of your case. For example, if you are not a joint owner but have the right to occupy the property because you have young children, you would apply using a different part of the FLA to someone with no existing right to occupy the property.
Evidence needed for an occupation order
You will need to make a sworn statement setting out the details of domestic abuse you have suffered. Solicitors tend to use the format of first, worst, and last. This means the first incident of domestic abuse is detailed, followed by the worst, and then the latest incident which pre-empted the application for an occupation order. It will help your solicitor if you have a record of past events and evidence to back up your claims. This could be text messages, GP or health visitor records, photographs of injuries, your diary, or anything you think confirms your case.
What will the courts consider when making their decision?
The approach the court takes depends on the section of the FLA you are applying under. Generally though, the court applies two tests: ‘the balance of harm’ and ‘core criteria’ which examines housing resources and needs of both parties and any children, conduct, financial resources, and the likely effect of making the order on the health (both mental and physical) of the parties and any children, and safety, and wellbeing.
The court will also look at how long the relationship lasted, its nature, and how long the parties have been separated. Additionally, the court considers whether there are any other legal remedies available, and whether there are any other proceedings that have or will be issued.
Do you need family law solicitors for an occupation order?
If you are in need of legal advice for your property matter or occupation order, Wiselaw researches and lists family solicitors from across the UK, from Manchester to Newcastle, Leeds, Sheffield, Liverpool, Birmingham, Leicester, Cardiff, Portsmouth, London, and many more. Wiselaw has the right family lawyer for your needs.
How long does it take to get an occupation order?
In emergency situations, an occupation order can be applied for and granted within a single day, with a ‘without notice’ or ‘ex-parte’ hearing before a judge. If the order is granted this way, then it must be served on the other party as soon as possible. If they have already vacated the property, then it is likely it will order them not to go within a certain distance of the home. Many of these types of orders have Power of Arrest attached, so that if a breach occurs, the police can take immediate action.
If the other party has not left the property, then the order may place a time limit on when they have to leave by. It will then go on to explain that they may not return and the consequences if they do.
Occupation orders obtained via the emergency process are usually only temporary, pending a ‘return’ hearing. At the return hearing, the judge will decide whether to extend the occupation order or let the offending party return. It is possible for the offending party to contest the order, particularly if they believe it is not corroborated by sufficient evidence. It is important to remember that courts do not make occupation orders lightly and only the most serious of cases will cause someone to be deprived of their legal right to remain in their home.
How are occupation orders enforced?
As briefly mentioned above, the process of enforcing an occupation order largely depends on whether a power of arrest is attached. Powers of arrest are usually attached in cases where the court is satisfied that the abuser used or threatened violence against you or any children. If a power of arrest is in place, then you can report a breach directly to the police. They can then arrest the abuser and take him to court.
If the occupation order does not have a power of arrest, you can still apply to the court to have the offending party arrested and punished for their breach. Someone who is found to have breached an occupation order can be sent to prison, fined, or given a suspended prison sentence.
How long does an occupation order last?
Occupation orders are only made for a specific period of time, until a particular event has happened, such as finances being settled, or until the court makes a further order. Some orders may only be made for around 6 months, but you can apply to the court to have the duration extended on one or more occasions for a maximum of 6 months each time.
How do I pay for an occupation order?
If you do not have the necessary funds and want a solicitor to help you, then the firm must have a Legal Aid contract. In order to be eligible for legal aid, you must show that your case is eligible for legal aid (your solicitor will help you with this), that the problem is serious, and you cannot afford to pay your legal costs. Most cases that are awarded legal aid have proved that they and their family are at risk of abuse, or serious harm if the order is not obtained.
The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.
