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What Is an occupation order?
When a relationship breaks down, one of the most difficult and urgent issues can be deciding who should remain living in the family home. This can become even more complicated where there are allegations of domestic abuse or where one person no longer feels safe living under the same roof as the other.
In these circumstances, the family court may be asked to make an occupation order.
An occupation order is a type of injunction made by the family court. It can decide who lives in the family home and who must leave. It may also say who must pay the bills.
Alternatively, if both parties need to remain in the property temporarily, the order could state that each person must use separate bedrooms or areas of the property.
Who can apply for an occupation order?
To apply for an occupation order, the applicant needs to be associated with the respondent. Their relationship doesn’t necessarily need to have been romantic; it can include friends or relatives.
They also need to have lived in the property as their home.
What does the court consider?
The court will look at all the circumstances of the situation. They will then apply the “balance of harm” test. This will consider if the applicant, or any child, is likely to suffer significant harm if the occupation order isn’t granted. They will also look at whether making the order will cause greater harm to the respondent or any children.
The court may consider factors such as:
- the housing needs of each person;
- the housing needs of any children;
- each person’s financial resources;
- the effect of the decision on any child;
- the conduct of the parties.
How do you apply for an occupation order?
An application for an occupation order is made by submitting the relevant form to the court. The applicant will also need to prepare a supporting witness statement and submit any evidence they wish to rely on.
What to do if a non-molestation application is made against you.
Once the application has been received by the court, they court will list the matter for hearing. Here, the respondent will get the opportunity to respond and challenge such order. It is recommended that you seek legal advice as early as possible in this situation.
The respondent has the right to oppose the application and provide their own evidence. They may argue, for example, that the allegations are disputed or that they have nowhere else to live.
The court will consider both sides before deciding what order, if any, should be made.
Can an occupation order be made urgently?
Yes. In urgent cases, it may be possible to apply for an occupation order without giving the other person advance notice. This is called a “without notice” or “ex parte” order.
A without notice application may be appropriate where there is an immediate risk of harm, or where telling the other person about the application could put the applicant or children at further risk.
If the court does make an order without notice, it will list a further hearing shortly afterwards. This gives the respondent an opportunity to attend court and respond. The court can then decide whether the order should continue, be changed, or be discharged.
How long does an occupation order last?
The length of an occupation order will depend on the circumstances of the case. They are intended to decide the parties’ temporary living arrangements until they have sorted where they will live and how the property will be divided.
They can initially be granted for up to six months but may be extended once for a further period not exceeding six months.
What happens if an occupation order is breached?
A Judge can choose to attach a power of arrest to an occupation order. If the respondent breaches such order, they can be arrested without the need for a warrant.
If there is no power of arrest in place, the applicant can commence contempt of court proceedings. The court will look at all of the circumstances, but some possible outcomes include:
- a custodial sentence for a maximum of two years
- a suspended sentence
- a fine
At George Green, we understand how stressful these situations can be. Our family law team can provide clear, sensitive and practical advice to help you understand your options and take the next steps. If you wish to discuss your situation or any issues raised in this blog our family solicitors are based in Wolverhampton, Cradley Heath and Sutton Coldfield and serve clients across the West Midlands. For all new enquiries, please call 01902 328 355 or complete our online enquiry form and a member of our team will respond.