What is an occupation order?
An occupation order is an order made by the courts to enforce, declare or restrict rights to occupy the family home. They can be used for many instances regarding either defined areas of the property, the permission to enter the property and even the requirement to leave. The individual circumstances of the case will determine which order is best suited. The most common use of an occupation order is where a relationship breaks down and one party is abusive towards the other; the victim of abuse will seek to exclude the abuser from the house to reduce the risk of harm.
An occupation order is a civil remedy, so breach of an order is not a criminal offence. However, a power of arrest is normally attached to an occupation order, meaning that if the order is breached the police can automatically arrest the person in breach of the order.
How to apply for an occupation order
To apply for occupation order you must fill out a FL401 form. You can either apply online using the government website or by post. There are currently no court fees for applying for this. The application must be accompanied by a supporting witness statement. A solicitor can assist with preparing this.
What are the criteria for obtaining an occupation order?
The Family Law Act of 1996 was enacted to protect victims of domestic violence and to provide remedies to those who apply. A victim of abuse, for example, can apply for an occupation order. Orders that interfere with someones established property rights are not made lightly, as they have the potential to evict someone from their home, which they are legally entitled to live in because they jointly or solely own the property. As a result, granting such an order is subject to stringent criteria.
There are different criteria for determining whether an occupation order will be made depending on the relationship status of the people involved and whether the person applying already has a legal right to occupy the home. In some cases the court applies thebalance of harm test; where the consideration is to balance whether significant harm is likely to be suffered by anyone if an order is not made versus the potential harm if it is. In other cases the court has discretion and must consider all the circumstances of the case. The tests can be complex and legal advice is likely to be needed.
How long do occupation orders last?
Occupation orders can be issued for a set period of time or until a specific event occurs. It is also possible for an occupation order to be in place until a new order is issued to extend the order. Depending on the individual situation, most occupational orders are made for a maximum of six months, but they can be extended for six months at a time.
If you a thinking about an occupation order, or have any questions about this article, please get in touch with one of our specialist Family law team who will be able to assist.
