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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:
Which order is best suited will depend on the individual circumstances of each case.
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.
In order to apply for an occupation order, 3 requirements must be met. These are:-
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.
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.
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.
If you wish to make an application for an occupation order and you seek advice specific to your circumstances and/or if you wish to be represented in the application, please contact one of our family law specialists who would be happy to assist you. Get in touch today.
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