What is an occupation order?

An occupation order affects who can live in, or live in part of the family home. It is a type of injunction made under Part IV of the Family Law Act 1996 and can have the following effects. An occupation order might:

1. allow you or your partner to stay in the home;
2. allow you or your partner to return to the home if you/they have left;
3. restrict you or your partner to part of the home;
4. prevent you or your partner from entering the home;
5. prevent you or your partner from visiting the neighbourhood where the home is located;
6. provide that your ´home rights´ do not cease in the event of the death of the other spouse or civil partner or upon termination of the marriage or civil partnership.

Who can apply for an occupation order?

You can apply for an occupation order if you are an ´associated´ person under the Family Law Act 1996. People are considered to be associated persons if:

1. they have been married to each other or been in a civil partnership together;
2. they are or have been civil partners;
3. they are or were cohabitants;
4. they lived in the same household (excluding tenants, lodgers, boarders and employees);
5. they are relatives;
6. they agreed to be married (whether or not that agreement has been terminated.

Applications under parts of the Act

Applications are brought in consideration of the applicant and respondent's specific circumstances and the relevent sections of the Family Law Act 1996.

Section 33: allows applications by an ´associated person´ who has the legal right to occupy the property including:

1. a joint or sole tenant.
2. a joint or sole owner of a property.
3. someone otherwise entitled to occupy a property by virtue of having ´home rights´ (married couples and couples in civil partnerships automatically have home rights by virtue of being married to the owner of a property).

Section 35: allows applications against a spouse or civil partner (including same sex partner) where the applicant has no existing right to occupy the property (whereas the respondent does have an existing right).

Section 36: allows applications against a cohabitant or former cohabitant (including same sex partners) where the applicant has no existing legal right to occupy a property (whereas the respondent does have an existing right).

Section 37: allows applications against a spouse or civil partner (including same sex partner) where neither party has existing legal rights to occupy a property e.g.where the property is a ´squat´.

Section 38: allows applications against a cohabitant or former cohabitant (including same sex partner) where neither party has existing legal rights to occupy a property e.g.where the property is a ´squat´.

Note: Rights to occupy can be granted by tenancy, marriage or ownership, but may also be granted where the ´associated person´ has a beneficial interest in a property, either by financial contributions made to the purchase of the property or if there is a mutual intention to share the property.

What does the judge consider?

An occupation order is a draconian measure given that an application may risk someone being forced from their home. These orders should only be made in exceptional circumstances (but exceptional circumstances are not limited to threats or acts of violence - see our case law section).

For an application for an occupation order to succeed, the circumstances must pass one of two ´tests´. The first test being the ´balance of harm´ test.

Balance of Harm Test

When deciding whether to make an occupation order, the judge will consider whether the applicant or any relevant child is likely to suffer significant harm due to the conduct of the respondent if the occupation order is not made. Under (section 33(7) of the Family Law Act 1996), the court will make the order unless it appears:

1. the respondent or any relevant child is likely to suffer significant harm if the order is made; and
2. the harm likely to be suffered by the respondent or child in that event is as great as, or greater than, the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made.

In essence... are the applicant and/or children at risk of significant harm... and, if an order is made, will that cause more harm than if the order was not made.

Core Criteria Test

If the judge does not find sufficient reason under this ´balance of harm´ test , an application might still be brought under the ´core criteria test´ (under section 33(6) of the Family Law Act 1996).

Matters which are considered under this second set of criteria are:

1. the housing needs and housing resources of each of the parties and of any relevant child;
2. the financial resources of each of the parties;
3. the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child; and
4. the conduct of the parties in relation to each other and otherwise.

The making of an occupation is a serious matter, and the order is normally made where there are incidences of domestic violence.

Where the respondent has not made threat of violence or caused violence to the applicant or a relevant child, the judge has the discretionary power to accept an undertaking as an alternative to making an occupation order (see section 46 of the Family Law Act 1996).

How long does an occupation order last?

Occupation orders are intended to determine temporary living arrangements to give the applicant and respondent time to sort out where they will live and how they will divide their property. Again, such orders are generally made where the applicant and/or relevant children are at risk of significant harm and/or where the conduct of one or both parties has made such an order necessary.

An occupation order can be made for a period of up to 6 months, and then extended for further periods of 6 months (unless the applicant had no rights to occupy, whereupon the order can only be extended once).

Ex Parte, On Notice and Return Hearings

Applications for occupation orders are sometimes made without the other party being present (ex-parte). An ex-parte application should be considered if forewarning of an application risks the safety of the person applying to court, or their children.

The court often takes a cautious approach to safety and wellbeing, and may grant the occupation order without having heard evidence from the other side. However, in such circumstances the court is likely to set a further hearing date (or the other party may request one) to enable arguments and evidence against the need for such an order to be heard.

It is important to be aware that restrictions set out in the occupation order and the order itself do not come into force until served on the named parties.

What happens if an occupation order is broken?

The penalty for breaking an occupation order can be up to two years in jail where a power of arrest was attached to the order, or a fine of up to £5,000.

Applying to court

If you are using a solicitor, they will do this for you. Otherwise, download and complete Form FL401. Print and sign three copies of the form.

Also download and read How can it help me? Part 4 of the Family Law Act 1996 - Domestic Violence.

It will assist both you and the judge if you write a brief Position Statement. Try to keep the position statement to two to three pages, setting out briefly why you are applying for contact, and why you believe it to be in the children´s best interests. Be factual, and try to be objective in what you write, and the language you use.

A position statement is not essential, but it helps inform the judge, briefly and ideally succinctly, why you are applying for the order, and can assist you in court so you do not forget any points you wish to raise.

Before setting off for the court building, ensure you have with you:

• Three completed and signed copies of the forms;
• Three copies of your Position Statement.
• Hand in the court forms, fee and position statement to the court´s administration department.

Legal Advice and Assistance

An occupation order does not guarantee safety, and if you believe yourself or your children to be at risk of significant harm, we recommend you also obtain legal advice from a solicitor. If you believe you cannot afford a solicitor, you may be eligible for legal aid. A solicitor will be able to confirm whether or not you are eligible.