If you are experiencing a difficult situation in your relationship, where you are feeling unsafe, or you and your partner cannot agree on who should live in the home, you may need an occupation order. This legal process can help to protect your rights to live in the property, especially in cases of domestic violence, separation, or divorce. But how do you apply for one, and what do you need to know before taking this step?
In this article, we will guide you through the process of getting an occupation order. We’ll explain what it is, who can apply for it, the factors the court considers, and the steps you need to take to apply. By the end, you will have a clear understanding of the occupation order process, helping you to feel confident about your next steps.
What is an Occupation Order?
An occupation order is a legal order made by a court under the Family Law Act 1996. It can decide who has the right to live in a property, or it can place restrictions on the use of the home. In some cases, it can also define which parts of the home each party can access.
Most commonly, occupation orders are applied for in situations where one person is afraid of their partner or feels unsafe living together. For example, if you are a victim of domestic abuse and want to remove your partner from the home, an occupation order can help to prevent them from returning. It’s important to note that an occupation order doesn’t change property ownership—it just defines who can live in the home temporarily.
Who Can Apply for an Occupation Order?
Not everyone can apply for an occupation order. There are specific conditions and criteria set out by law that determine who can request one.
To apply for an occupation order, the individuals involved must be ‘associated persons’. This means that you and the person you are seeking protection from must have had a close relationship. Under the Family Law Act, you are considered ‘associated persons’ if:
- You have been married or are civil partners.
- You are cohabiting or have cohabited as a couple (including same-sex couples).
- You are family members (e.g., parent/child, siblings).
- You are ex-partners or ex-spouses.
This law applies in England and Wales, and both men and women can apply for an occupation order. It’s important to understand that if you are not in one of these relationships, you won’t be eligible to apply for this order.
What Does the Court Consider When Deciding on an Occupation Order?
When applying for an occupation order, the court will look at various factors before making a decision. The court’s primary aim is to make a decision that is fair and reasonable for both parties involved, particularly when children are in the picture.
Here are some of the key factors the court will consider:
Housing Needs and Resources
The court will consider the housing needs of each person involved. This includes whether you or your partner (or any children involved) have somewhere else to live or whether either of you would be at risk of homelessness if the occupation order is made.
Financial Resources
The financial situation of both parties will also be taken into account. This includes whether either party can afford to live elsewhere or whether they rely on the current home as their main place of residence.
Health, Safety, and Well-being
One of the most important factors is the impact of the occupation order on your health and well-being, as well as the health and well-being of any children involved. If the court believes that remaining in the same home will put you or your children at risk of harm, this could be a deciding factor in issuing the order.
The Conduct of Both Parties
The court will examine the conduct of both parties involved. If there has been any history of abuse, violence, or other harmful behaviour, this will play a crucial role in the court’s decision-making process. If you are the victim of abuse, this will be taken very seriously.
Risk of Harm
The court applies a “balance of harm” test. This means that if the court believes that you or your children would be at risk of harm if the order isn’t made, the judge is likely to issue the order. On the other hand, if the respondent (your partner) would suffer significant harm as a result of the order, the court must weigh this up carefully before making a final decision.
Different Types of Occupation Orders
When applying for an occupation order, it is important to understand that there are different types of orders. The court can make a declaratory order, a regulatory order, or both.
Declaratory Order
A declaratory order is used to declare or confirm your right to live in the property. For example, if you and your partner disagree about who has the right to stay in the home, a declaratory order can be issued to confirm that you are entitled to occupy the property.
Regulatory Order
A regulatory order is used to control or restrict the other party’s rights to occupy all or part of the home. If you are looking to stop your partner from living in the property, the court can issue a regulatory order to exclude them or limit the parts of the home they can access.
How to Apply for an Occupation Order?
If you believe that you need an occupation order, here is a step-by-step guide to help you apply for one:
Step 1: Prepare Your Application
To apply for an occupation order, you need to complete an application form known as Form FL401. This form is available from the family court. The application form requires detailed information, including why you need the order and what the specific situation is. You will also need to explain the relationship between you and the other party and provide any supporting evidence to back up your application.
Step 2: Prepare a Statement in Support of Your Application
Along with the application form, you will need to prepare a statement in support of your application. This statement should explain why you need the occupation order and describe any relevant facts, such as your housing situation, the history of the relationship, and any abuse or harmful behaviour that has occurred. The statement should also provide details about any children involved.
Step 3: Submit Your Application to the Court
Once you have completed the application form and your supporting statement, you need to submit these documents to your local family court. You can submit your application by post or in person at the court. The court will then review your application.
Step 4: Attend a Hearing (If Required)
In most cases, you will need to attend a hearing where the judge will consider your application. You may be asked to explain your situation in front of the judge, and the other party may have the opportunity to give their side of the story as well. If you are applying on an emergency basis (for example, if you are at risk of immediate harm), a judge may make a decision without the other party being present.
Step 5: Receive the Court’s Decision
Once the court has considered your application, they will decide whether to grant the occupation order. If the order is granted, the court will issue the order and specify the terms, including how long it will last and what restrictions are in place. If the order is refused, the court will explain the reasons for the decision.
Emergency Applications for Occupation Orders
In cases where you or your children are at immediate risk of harm, you can apply for an emergency occupation order. This type of application can be made without notifying the other party, and the court will make a quick decision to protect you. If the emergency order is granted, the court may then schedule a full hearing at a later date.
Legal Fees for Applying for an Occupation Order
In some cases, you may need to pay legal fees for applying for an occupation order. However, legal aid is available for people applying for occupation orders in cases of domestic violence. Legal aid may cover all or part of your legal costs, depending on your financial situation and the merits of your case.
If you do not qualify for legal aid, you may need to pay your solicitor’s fees. Some solicitors may offer fixed fees or payment plans to help with the costs.
Conclusion
If you are facing a situation where you need to protect your right to live in your home, an occupation order can provide essential legal protection. By following the steps outlined above, you can apply for an occupation order and ensure that the court considers your needs and the safety of any children involved. Remember that it’s important to seek legal advice and support to help you through this process, especially if you are experiencing domestic abuse or violence. You don’t have to go through this alone, and there is help available to ensure your safety and security.
