What does the Court consider when deciding whether to grant an Occupation Order?
When making an Occupation Order the Court must strike a balance between safeguarding the applicant and any children, and the right of the other party not to be evicted from their home for no good reason. Therefore, an Occupation Order will only be granted if the Court is satisfied that the Applicant will suffer significant harm if the Order is not made.
When granting an Occupation Order, the Court should have regard to all the circumstances including, but not limited to:
The housing needs and housing resources of each of the parties and of any relevant child.
The financial resources of each of the parties.
The likely effect of any order, or of any decision by the court not to exercise its powers to make an order on the health, safety or well-being of the parties and of any relevant child.
The conduct of the parties in relation to each other and otherwise.
In addition, the Court will employ a "balance of harm" test when considering whether to grant an Occupation Order. This test evaluates whether the harm caused to the Applicant or relevant child as a result of not granting the order outweighs any harm that the Respondent may suffer if the Order is made.
What is the impact of an Occupation Order?
A successful application for an Occupation Order can have a profound impact on the parties involved.
Occupation Orders often provide temporary relief by giving the Applicant the right to remain in the family home while excluding the Respondent. This can be especially crucial in cases of domestic abuse, where immediate safety and security are paramount
Maintaining stability for children
When children are involved, Occupation Orders aim to maintain stability and continuity in their lives. They often grant primary care of the children to one party while allowing the other party limited access to the property, ensuring that the children can remain in a familiar environment.
Property rights and financial implications
Occupation Orders may have financial implications, as they can determine who remains in the family home and who is responsible for associated costs, such as mortgage payments or rent.
Emotional and psychological effects
The emotional and psychological impact of Occupation Orders should not be underestimated. For the party being excluded, it can be a difficult and emotionally charged experience as they are being forced to find alternative accommodation which may be far away from their work and support network.
How long do Occupation Orders last?
The Court will make the Order for a specified period. However, there is usually an option to extent it for six months at a time.
What happens if an Occupation Order is breached by the Respondent?
Unless there is a power of arrest attached to the Occupation Order, breaching it is not a criminal offence. A power of arrest will normally be attached to the Order in cases where there has been instances of domestic violence or threats of violence.
If there is no power of arrest, the Applicant must apply to the Court for a warrant to have the Respondent arrested.
Getting legal help
The high bar applied by the Court to obtain an Occupation Order it is essential to talk with an experienced Family Law Solicitor before making an application. They can advise you on whether your application has a chance of success.
It is just as important to instruct a Solicitor if you are the Respondent in an Occupation Order application. You will need expert legal advice on defending the granting of the Order. This will provide you with the best chance of being able to remain in the home that you have a legal right to reside in.
Guillaumes LLP Solicitors is a full-service law firm based in Weybridge, Surrey. We have a highly experienced family law team who can assist you with all family law matters. To make an appointment, please call us on 01932 840 111.