Occupation Order
What is an Occupation order?
The aim of the Family Law Act 1996 is to protect victims of domestic abuse and provide legal protection for those who seek it. The occupation order governs the use of the family home.
Who can apply for an Occupation Order?
You have to be “associated” with the other perpetrator by one of the following:
Being married to or being a civil partner.
Living together in the same home in a family situation.
Having an intimate physical relationship.
Being part of the same family proceedings.
How do courts assess an Occupation Order application?
The court will use two tests: the “balance of harm” test and the “core criteria” tests, which look at the parties’ housing requirements and resources, the parties’ children, the parties' financial resources, the parties' behaviour and the likely impact of the order on any parties’ health, safety or well-being.
If the relationship has already broken down, the court will consider the nature of that relationship, duration, and length of time the parties’ relationship has been apart. The Court will also assess the other legal remedies available to the parties, the proceedings that have been or will be brought before the Court.
How long does an Occupation Order have effect?`
The length of the Occupation Order can range from 6 months to an indefinite period. However, it is unlikely that the Occupation Order will be extended beyond 6 months. During this time, you must sort out the ownership of the property, so it’s important that you stay on track and do not stop once you’ve been granted the Occupation Order. This is especially important if you’re married, own or rent a home together. Extensions to the Occupation Order are possible but are not guaranteed.
What happens if the perpetrator breaches the Occupation Order?
Breaching an Occupation Order is not automatically a criminal offence. The court can attach a Power of arrest if they believe the perpetrator has used, threatened, or used violence against you. Violating an occupation order carries a maximum sentence of two years in prison, or a fine of £5,000, depending on the circumstances. If no Power of arrest is attached, you may need to apply for a warrant. You need to provide evidence and prove to the court that you have reasonable grounds to believe the perpetrator has breached the Occupation Order.
What is the process of applying for an Occupation Order?
To apply for an Occupation Order, you have to complete an FL401 application and submit it to court. You will also need to prepare a statement to support your application. The application process can be complicated, so it is best to work with a solicitor.
How quickly can you apply for an Occupation Order?
If you or a child are in danger of harm, you can apply for an Occupation Order on an emergency basis. You can apply without notice if you are at serious risk of harm or if the perpetrator may try to force you to withdraw your application. If there is no immediate danger of harm then you will apply on notice. This means that a court hearing will be arranged for both of you and the perpetrator need to attend.
Will I be able to apply for an Occupation Order with legal aid?
Legal aid is always available for non-molestation and occupation orders, regardless of your income. However, depending on your income, you may be required to pay a proportionate amount towards your legal costs.