Occupation Orders
What is an Occupation Order?
An Occupation Order is an order the court can make that determines who can remain living in a property or certain parts of it. Occupation Orders are often applied for in matters where someone has been a victim of domestic abuse.
Who can apply?
You have to be eligible to apply for an Occupation Order. You must meet the following three requirements (s33 Family Law Act 1996):
- You must have a legal or contractual benefit in the property, or a right to occupy. This includes Matrimonial Home Rights.
- The property must be or has been at some point the home of the parties and intended to be their home.
- The parties must be associated (s62 Family Law Act 1996). A few examples include spouses, civil partners, cohabitants, relatives.
What will the court consider?
Balance of Harm Test
When making an Occupation Order, the court has to consider any significant harm the applicant or relevant child is likely to suffer attributable to the conduct of the respondent, if the order is not made (s33(7) Family Law Act 1996).
If the court is of the view that if the order is not made, the applicant or relevant child is likely to suffer significant harm, the order shall be made (s33(7) Family Law Act 1996).
Should the court determine that the respondent or relevant child is likely to suffer significant harm if the order is made, and this harm is greater than the harm likely to be suffered by the applicant, the court shall not make the order (S33(7)(a) and s33(7)(b) Family Law Act 1996).
The purpose of this test is for the court to balance the harm suffered by the parties if the order is made. However, if the applicant fails at the balance of harm test, and it is deemed that the harm the applicant is likely to suffer is not greater than the harm the respondent is likely to suffer, the court has the discretion to make an order anyway.
Discretionary Test
The court may also make an order using their discretion (S33(6) Family Law Act 1996). To do this, the court will consider:
- Housing needs and housing resources of the parties and relevant child.
- Financial resources of the parties.
- Likely effect of any order of the court on the health, safety or well-being of the party and any relevant child.
- The conduct of the parties.
This is not an exhaustive list, and the court can consider other relevant factors.
How long do Occupation Orders last?
An order made under s33 of the Family Law Act 1996 can be made for a specific period or until the occurrence of a specified event, such as the sale of the property. An Occupation Order can also be ordered to last until a further order (S33(10)).
How to apply
If you are eligible to apply for an Occupation Order, you can apply by filling in a form FL401.
You can apply without notice if you or a relevant child would be at risk of significant if the respondent knew the application was being made.
If there is no immediate risk of harm, you can apply on notice and the respondent will be served with the application from the court.
If you need any help with Occupation Orders or representation, please contact clerks@avilchambers.co.uk.