What Is An Occupation Order?

Occupation Orders declare who is allowed to live in a property and the terms of that occupation. They can restrict someone’s right to live somewhere, enforce another person’s rights to the same premises or regulate the terms upon which they can both remain cohabiting. Applications to court are made under the Family Law Act 1996 and different parts of that legislation apply depending upon the connection between the parties.

To qualify, the couple usually must be, or have been:

• Married.
• Engaged.
• Living together as a couple.
• In an intimate relationship of significant duration; or
• Relatives

Such orders are very serious because they can prevent someone from living in their home or accessing their possessions. There is provision for applications to be made urgently and without informing the other person, but there have to be compelling reasons to justify exclusion without the Judge or Magistrates hearing from both parties before deciding. In practice, it is extremely difficult to obtain a without notice order.

When determining whether to grant an Occupation Order, the court applies what is known as the “balance of harm” test. This involves carefully weighing the potential harm that could be suffered by each party involved, as well as any children, if an order is either granted or not granted.

“Significant harm” refers to harm that is considerable and not trivial. It goes beyond everyday disagreements or minor inconveniences. It can include:

• Physical harm: This could involve actual physical violence, threats of violence, or situations that create a reasonable fear of physical harm.
• Emotional or psychological harm: This could include severe distress, anxiety, or mental health issues caused by the living situation. Examples might be constant intimidation, harassment, or a highly volatile environment.
• Financial harm: If being excluded from the property would lead to significant financial hardship, such as homelessness or the inability to provide for oneself or dependents, this could be considered significant harm.

To determine the balance of harm, the court considers several factors:

• Alternative housing: The court will assess whether each party has alternative housing options. If one party has readily available and suitable alternative accommodation, while the other would be rendered homeless, this will weigh heavily in the decision.
• Financial resources: The court considers each party’s financial situation. If one party has the resources to secure alternative housing, while the other does not, this will be a factor.
• Conduct: The court will look at the behavior of each party. Evidence of domestic abuse, harassment, or other harmful conduct will be considered.
• Well-being: The court prioritizes the health, safety, and overall well-being of everyone involved, especially children. If the current living situation is detrimental to someone’s well-being, this will be a key consideration.

In essence, the court aims to make the decision that will result in the least overall harm. If it finds that the applicant or any children are at risk of significant harm if an order is not made, then the court is obligated to grant the order.

Anyone considering applying to court needs to think hard before taking that step and a Whitehead Monckton solicitor can provide a robust reality check to assess prospects of success and risk. Courts can simply encourage people to fight or defend themselves vociferously, with both parties trading arguments about conduct and claims to a property. In such cases, it can be difficult for a Judge or Magistrate to determine the truth. If mishandled, applicants can end up with regulatory occupation orders, which set out joint occupation of a property with access to certain areas at certain times. To some, this can be an even worse result than simply attempting to grasp and negotiate a different solution rather than going to court in the first place. “

If you need to apply for an Occupation Order, our experienced family law solicitors can guide you through the process. Contact us today for expert advice.