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 used to exclude someone from the family home, but 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

If you’re unsure which occupation order would be best suited to your situation, please contact a member of our family law team.

What is the Family Law Act, and how does this affect occupation orders?

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. As such, the difference between a non-molestation order and an occupation order is that the latter can prohibit somebody from accessing their property. 
Such orders are granted in very serious circumstances, as they can exclude someone from the home in which they are legally entitled to live (such as in instances where they jointly or solely own the property). For this reason, there are very strict tests for such an order to be granted.

What is the occupation order criteria?

In order to apply for an occupation order, three requirements must be met: 

• 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. This includes spouse/civil partner/cohabitee, relatives, people who have agreed to marry, or those who have had an intimate personal relationship with one another of significant duration. This list is not exhaustive, and we’d recommend speaking to our family law team if you have any questions about your specific situation. 

Even if these criteria are met, an occupation order does not affect house ownership in a legal sense. It is a short-term measure intended to protect the safety of those involved, and does not transfer the legal title to the applicant.  

Assessing an order: Balance of Harm

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 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. They will also consider the likely effect of an order, including the health, safety, or well-being of children, as well as the conduct of the parties.

What happens when an occupation order is breached?

If an occupation order is breached, it is considered contempt of court, which has various legal implications depending on how the order was issued. These can include: 

• Arrest: A ‘power of arrest’ can be attached to the occupation order, which gives the police the power to arrest the occupation recipient upon a breach. This is common in cases involving violent or dangerous individuals
• Court Proceedings: If the recipient is not arrested, they will still be required to apply to the Court for a warrant of arrest. Failure to do so will result in arrest by the police
• Prison time: The consequences of breaching an occupation order can include prison time. This is often up to two years, and will be decided by the Court upon the arrest of an individual 
• Fines: In cases where prison time is not involved, recipients of an occupation order who breach the order will sometimes be required to pay a considerable fine. This can go up to a maximum of £5,000

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.
You can apply for an occupation order without the other person knowing, which is known as a ‘without notice’ application. This is permitted in emergency situations when notifying the recipient of the order beforehand could result in danger for the applicant. In these instances, you would need to provide a witness statement explaining why the application is without notice, and any surrounding context that would assist the Court in its decision.

How long do occupation orders last, and can they be permanent?

Occupation orders can be made: 

• For a specified period 
• Until the occurrence of a specified event
• Until a further order is made extending the order

Occupation orders are not permanent and will be reviewed by the Court periodically, depending on the type of order that has been established.