An Occupation Order is another type of injunctive Order that can be issued by the Courts in England and Wales under the Family Law Act 1996 in cases where there is domestic abuse or violence.
An Occupation Order regulates who can live in a certain property, or part of a property, and can be granted to either party involved in the dispute. It can be used to remove the person named in the Order (the Respondent) from the home, or it can be used to allow the person seeking the Order (the Applicant) to stay in the home and exclude the respondent. The Order can also include provisions such as preventing the Respondent from entering the property or a specific area around it and can regulate the payment of rent or mortgage instalments and other related expenses.
To apply for an Occupation Order, parties must be ‘associated’ with one another. Whilst the following is not exhaustive, associated persons include spouses/ civil partners / cohabitees, relatives (i.e. mother, father, step-parent, sibling, niece or nephew etc), people who have agreed to marry, people who have had an intimate relationship with one another for a significant period of time etc.
In relation to any child, the parties are both either a parent or have parental responsibility for the child.
A ‘relevant child’ is defined as any child who lives or might live with either the Applicant and/or Respondent; a child whose interests the court considers relevant (including where an Order has been made about the child which is now in question within these proceedings).
Applications for Occupation Orders are complex, and it is advisable for anyone seeking to apply for such an Order to seek specialised advice.
In essence, an individual is entitled to apply for an Occupation Order if:
Occupation Orders can only be made ‘without notice’ against a Respondent in exceptional circumstances. Such Orders are usually made for fixed periods of time such as six or twelve months but can last until the occurrence of a specified event or until further order.
When deciding whether to make an Occupation Order, the Court will consider various factors, including the financial resources and housing needs of each party and any relevant children. The Court will also consider the conduct of the parties as well as carrying out a balance of harm test which considers the likely effect that any Order, whether granted or refused, would have on the health, safety and well-being of the parties and children.
One consequence of an Occupation Order is that a party can be barred from their home address. Because of the potentially draconian nature of such Orders, the provisions of an Occupation Order must therefore be proportionate and tailored to the party’s circumstances.
Proper service of an Occupation Order on a Respondent is essential and the Court will carefully consider any statement of service.
Should a Respondent breach a provision of an Occupation Order which has a penal notice attached to it, this can result in criminal charges. The Order can otherwise be enforced through civil proceedings. For this reason, an Occupation Order, like a Non-Molestation Order includes a warning setting out the consequences of a breach and highlighting that the Court’s powers include committal to prison and/or a fine.
The Court has the power to vary or discharge an Occupation Order if there is a change in circumstances, or if the Occupation Order is no longer necessary.
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