What is an occupation order?
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Upon the breakdown of a relationship, it can be difficult to decide which party should occupy the home. Due to home rights and other situations listed below, both parties can be entitled to occupy the property, therefore deciding who should leave can be decided by the court.
Although it may not be a long term solution to the issue, the court can use the resources of the Family Law Act (FLA) 1996 to bring a temporary resolution in the form of an occupation order.
An occupation order can be made to stipulate which party can live in the family home, and who must move out. The effect of any order can be different as some are declaratory, thus stating who can occupy the property. Contrastingly, regulatory orders can exclude someone from the family home.
Occupation Orders can also be used in cases of domestic abuse to exclude an abusive person and prohibit them from entering the family home.
Who can apply for an occupation order?
Individuals must be one of the relevant parties to apply for an occupation order. These parties include:
- Individuals who have matrimonial home rights
- Individuals who have lived in the same property as it was intended to be a family home
- Individuals who are considered “associated persons” under Section 62 of the FLA 1996:
- They have been married or are married to each other
- They have been civil partners or are civil partners
- Are cohabitants or former cohabitants
- Lived in same household, though not as a lodger or tenant
- They are relatives
- They have agreed to marry
- They have had an intimate physical relationship of a significant duration
- They have entered into a civil partnership agreement
- When the order relates to a child, they are the parent/have parental responsibility for the child
- They are parties to the same family proceedings e.g. for a non-molestation order
Depending on which criteria you fall under, you should apply under different sections of the Family Law Act 1996. For example, if you are a former spouse or civil partner with no current right to occupy the property, you should apply under Section 35 FLA 1996.
How can I apply for an occupation order?
An occupation order can be completed online via a FL401 form and is free to apply for. Parties should keep note of any relevant information as the situation unfolds because a supporting statement will be required.
The only expense attached to the application would be legal advice from a solicitor. Although it is optional, legal advice can be extremely beneficial from an expert in the area. This is because it will ensure that you are applying for the order under the correct section and complying with the relevant court stipulations.
Depending on financial status, some individuals may be eligible for free legal aid. As a result, the government will fund legal advice.
How long does an occupation order last?
Under Section 35(10) Family Law Act 1996, an occupation order lasts for six months. Nevertheless, the court can continue to renew it if they deem this necessary.
In rare circumstances, an occupation order can be indefinite.
Enforcement of occupation orders
As a court document, an occupation order should be taken seriously.
However, not all occupation orders provide a power of arrest. Therefore, if individuals believe that a breach has occurred, they should seek a warrant for arrest from the court. To do so, they must provide evidence on how the order has been breached.
Again, in rarer circumstances, the court are permitted to attach a power of arrest to provisions of the order. This action is usually taken if situation has involved domestic violence.
If an individual is arrested for the breach of an occupation order, they could face up to two years in prison or a fine of up to £5,000.
Who grants the orders?
Once an order has been applied for, the court will consider the application and arrange a hearing. Here, the court can apply and regulate the Family Law Act 1996.
To decide whether to grant an occupation order, the court will complete the ‘balance of harm test’.
Section 33(7) FLA 1996 states that “if it appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to the conduct of the respondent if an order under this section … is not made”, then they will make the order.
Then, the court will balance this consideration with an analysis of whether the order itself will cause “significant harm” to the respondent or the relevant child. To pass the balance of harm test, the harm suffered by the applicant or child if the order was not granted would have to be greater than the harm which may be suffered by the respondent if the order was granted. Nevertheless, even if the test fails, the court have the discretion to grant the order anyway.
Once this test has been completed, the court move onto the “core criteria” test. This includes a consideration of the parties housing needs and housing resources. Alongside this, the court will look at the impact which the order will have upon the parties’ financial resources, health, safety, and wellbeing of the parties to the proceedings.
How can we help?
If you are unsure of where to turn to for family law advice, our team can be on hand to provide assistance. With experts in family finance, separation, divorce and marriage and domestic violence, we can be relied upon.
By finding out some information about your individual situation, we can locate an expert whose expertise match your family law matter. As legal proceedings can often be stressful and possibly anxiety provoking, the instruction of a legal professional will immediately take the pressure off of you and allow you to be confident in your application.
To find out more about how our legal professionals can help you, please contact us via the form at the top of the page.
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