An occupation order is one of several remedies available under Part IV of the Family Law Act, 1996. The orders – which may be granted irrespective of the gender of the applicant – are designed to protect individuals and children from harmful situations, including actual or threatened domestic violence.

In the context of divorce and separation the order is an essential tool when:

  • One party (the applicant) wishes another (the respondent) to stay away from a shared home
  • Where an applicant wishes to assert his or her right to remain in a property from which they have been excluded

Typically, occupation orders lay down who is permitted to live in a particular property and who is excluded. They might also contain provisions about property maintenance and mortgage payments. Sometimes judges will consider simultaneously imposing a non-molestation order against a spouse or partner.

Occupation orders do not have any effect on the legal ownership of the property. Although usually in place for a specified period of time only, these orders will have a significant impact on the individuals affected.  As a result the courts do not make them lightly.

Who can apply for an occupation order?

A successful application will depend on a number of factors. These include the entitlement of the applicant to live in the property and his or her relationship with the respondent.

You must clear a number of hurdles before obtaining an occupation order. First, you need to show you are in some way ‘associated’ with the respondent. Secondly you must demonstrate a connection to the property to which any order will relate. Thirdly you must satisfy the so-called ‘balance of harm’ test.

If you are unable to satisfy that harm will occur if an order is not made, the court may, in its discretion apply ‘core criteria’ to your case and still make an occupation order.

We will look at each of these elements in turn.

1.         ‘Associated person’

The rules state that you can only apply for an occupation order in respect of someone else if you are ‘associated’ with him or her. This means you:

  • Are or were married
  • You are or used to be cohabitees
  • You lived together and were not simply tenants or lodgers
  • Are related to each other
  • Have agreed to marry each other

2.         Connection to the property

Once an association is established it is essential to demonstrate that you have some kind of connection to the property to which any order is going to relate. For example, you are a tenant or an owner, you are married to or in a civil partnership with a tenant or owner or you were previously married to or in a civil partnership with the tenant or owner.

3.         The balance of harm

The family judge must consider if the applicant or any child is likely to suffer significant harm because of the behaviour of the respondent. If he or she decides that significant harm will occur he or she should make an order unless:

  • There would be significant harm to the respondent or child if the order is made
  • There would be equal or greater harm to the respondent or child if the order is not made

4.         Core criteria and the court’s discretion

If the balance of harm test is not satisfied the court can still use its discretion in favour of granting an order. To do this it will consider the ‘core criteria’ set out in the legislation. These are:

  • The housing needs of the parties and children
  • The financial resources of the parties
  • The likely effect of any order or decision not to make an order on the health or well-being of the parties and any children
  • The conduct of the parties

We provide advice to both applicants and respondents on all aspects of occupation orders, related non-molestation orders and other family law disputes. You can enquire online or call us in confidence on + 44 (0) 20 7430 8470.

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