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What is a occupation order ?

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This is a guide to what is a occupation order and how to get one.

Occupation order

An occupation order is made to enforce who can live in the marital home, who is excluded from the home and can also regulate who can enter the home and the surrounding areas.

An occupation order is usually used in cases with domestic abuse (under the Family Law Act section 33 and 35 to 38). Victims of domestic abuse can also apply for a ‘Non-Molestation Order’ which is made to prevent further harm to the victim, but an occupation order will regulate who can and cant live in the family home and can give more protection to the victim.

An occupation order can –

Enforce your abuser to move out of the family home.
Enforce your abuser to stay away from the family home.
Enforce your abuser to stay a certain distance away from the family home.
Order your abuser to let you back in the home if they have locked you out (e.g., If the locks have been changed and you still have the right to live there).
Order the abuser to pay the mortgage, bills and/or rent.
Decide if you and your abuser should live in different parts of the family home (if appropriate).

A occupation order will not change the financial ownership of the property.

An occupation order will protect you and a relevant child under the age of 18. If your child in over the age of 18 or another family member over the age of 18 also need protection, they will need to make their own application for an occupation order.

Criteria

An occupation order is only granted in situations that are deemed as being very serious and that there is a real threat of harm. Since an occupation order will determine who can live in the family home and remove someone from where they are legally allowed to live, the criteria that must be met is very strict.

To apply for a occupation order, you must meet these 3 pieces of criteria –

The applicant must have the right to live in the family home (eg you are the sole owner or sole tenant, or co-owner or co tenant or you have matrimonial home rights due to marriage).
The family home has been your home, as well as the respondents (your ex).
You and the respondent must be associated.

Examples of being associated are –

Married or engaged to married.
In a civil partnership or engaged to be in a civil partnership.
In a relationship longer than 6 months.
Are and were living together at any point of the relationship.
Lived or live as part of the same household.
A close family member.
Have a child together.
Have or had parental responsibility for the same child.

Application

To apply for an occupation order, you will need to apply using form FL401. You and/or your solicitor will need to write a ‘Witness statement’ (a signed document recording the evidence of a witness) which gives details of your relationship such as, any children under 18, the history of violence or threat of violence, the effect it has had on you and any relevant children mentally, dates and why you are making the application. You will also need to explain why your application is urgent, they court will need strong reasons as to why you need the application to be made urgently so you will need to explain this in your witness statement, the court can make a urgent occupation order within 24 hours of the application. You will need to attend at least one court hearing. When you are ready to fill out form FL401 you will need to state what order you are applying for and why you are applying.

What section should I apply under ?

You should apply under Section 33 if you have the right to live in the property because of a beneficial estate (an estate that has been left to you in a will) or because of any legislation giving you the right to live in the house. You can also apply under this section if you have any home rights in connection to the property or you are the sole or co-owner or the sole or co-tenant of the property.
You should apply under Section 35 if you were formally married or in a civil partnership but have no existing right to live in the property.
You should apply under Section 36 If you are a cohabitant or former cohabitant but have no existing right to live in the property.
You should apply under Section 37 if neither you or your partner or civil partner have no existing right to live in the property.
You should apply under Section 38 if neither you or your cohabitant have no existing right to live in the property.

Sometimes the court will suggest instead of an occupation order, the abuser should make a undertaking (a promise) to not harass or abuse the applicant anymore. This undertaking can only be accepted if there has been no threat or use of domestic abuse has taken place and the applicant does not have to accept the undertaking if they do not wish to.

You can also include any evidence you have of domestic abuse, while no actual evidence is needed to make a application it will strengthen your case, examples of evidence are –

Hospital visits.
Medical records.
Police crime reference numbers.
Communications with domestic abuse helplines/organisations.
Communications with doctors, health visitors etc.

If you wish you can ask the court to hear your application without any notice being given to the respondent, but you must state why you wish no notice to be given such as you are scared that your abuser may harm you or your children if they know you are going to make an order against them. If your application is successful and is made without notice to the respondent, the court will most likely arrange another court hearing to give the respondent a chance to give their side of the story. You will need to attend this court hearing and possibly give evidence, the court will listen to all the evidence presented and then decide if the order should be continued or extended.

You should send you application to your local family court. There is no court fee to apply for an occupation order.

The court will consider the housing need and the finances of each party and will also consider the safety and wellbeing of any children. The mental and physical health of the applicant will also be considered. The court will use the ‘balance of harm’ test which will consider the harm the applicant and/or relevant child may suffer if the order is not granted. The court will grant the order if they believe that the applicant and/or relevant child will suffer significant harm is the order is not made.

If the order is granted you should have a copy of the occupation order and your solicitor should send a copy to the respondent as the order is not in effect if there is no proof that the respondent received a copy.
An occupation order can be made for a specific amount of time (usually less than 6 months) and can then be extended for a maximum of 6 months at a time. It is unlikely a occupation order will last longer than 6 months as extensions of the order are not always guaranteed. The order can only be extended over 12 months if you have the legal right to stay in the martial home, such as you have matrimonial home rights or you are the sole or co owner).

What if the order is broken ?
Breaking a occupation order is not a criminal offence unless power of arrest (power of arrest is a mandate given by a central authority that allows an individual to remove a criminal's liberty) has been included in the order. If power of arrest has been included, breaking the order can result in a prison sentence or fine. A power of arrest is only included if the respondent had threatened or used violence against the applicant. If power of arrest is not included in the order you can apply to the court for a ‘warrant of arrest’. You will need to give evidence to show the court that there are reasonable grounds for an arrest.

Breaking a occupation order is not a criminal offence unless power of arrest (power of arrest is a mandate given by a central authority that allows an individual to remove a criminal's liberty) has been included in the order. If power of arrest has been included, breaking the order can result in a prison sentence or fine. A power of arrest is only included if the respondent had threatened or used violence against the applicant. If power of arrest is not included in the order you can apply to the court for a ‘warrant of arrest’. You will need to give evidence to show the court that there are reasonable grounds for an arrest.

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