What is an occupation order and the criteria to apply?

The general aim of an occupation order is to regulate the occupation of the family home. Occupation orders are not only to exclude someone from the family home, they can also be used to:

• enforce the right to remain in occupation of the property,
• require permission to enter and remain in the property,
• regulate the occupation of the property,
• prohibit, suspend or restrict the exercise of occupation in the property,
• require the departure from the property,
• exclude from a defined area in which the property is located.

Which order is best suited will depend on the individual circumstances of each case.

Occupation order family law act

The Family Law Act 1996 aims to protect those suffering domestic abuse and offer remedies to those who apply. For instance, under the Family Law Act, a victim of abuse may apply for a Non-Molestation Order which prevents the perpetrator from pestering, harassing or molesting. It does not, however, deal with the issue of the occupation of the family home. An occupation order regulates the occupation of the property. Such orders are granted in very serious circumstances as it can exclude someone from the home in which they are legally entitled to live i.e. they jointly or solely own the property. For this reason, there are very strict tests for such an order to be granted.

Occupation order criteria

In order to apply for an occupation order, 3 requirements must be met. These are:-

• The applicant must have a legal or contractual benefit in the property or a right to occupy. This includes circumstances where the applicant is not necessarily named as an owner of the property however they have ‘Matrimonial Home Rights’ by virtue of their marriage and occupation of the property as their home.
• The property is or has been at some time the home of both parties and was intended to be their home.
• The parties must be ‘associated’ as set out within s62-s63 of the Family Law Act 1996 i.e. spouse/civil partner/cohabitee, relatives, people who have agreed to marry, have had an intimate personal relationship with one another of significant duration, the list is not exhaustive.

When making an application under the Family Law Act for an occupation order, the Court will consider the balance of harm test. The Court’s duty is to balance the harm which will be suffered by the applicant or child if the order is not made against that of the respondent if the order is made. If, in the absence of an order, the applicant will suffer significant harm, the order must be made unless it is proven that the harm suffered by a respondent would be greater if an order is made. If this test fails, then the Court does have the discretion to make an order anyway.

In deciding whether to grant an order of occupation, the court will have regard to the housing needs and housing/financial resources of the parties and children, the likely effect of an order made including the health, safety or well-being of children and finally the conduct of the parties.

How to apply for an occupation order

In order to make an application for an occupation order, a Form FL401 entitled “Application for: a non molestation order/an application for an occupation order” must be completed and lodged at the Court. There is currently no fee payable to the Court to issue an application.

How long do occupation orders last

Occupation orders can be made for a specified period, until the occurrence of a specified event or until a further order is made extending the order.  Depending on the circumstances, some orders can only be made for a period not exceeding 6 months but can be extended on one or more occasions for a maximum of six months each time.