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What Is An Occupation Order?

The breakdown of a relationship can often lead to complex legal disputes, particularly when it comes to issues related to the family home. Occupation Orders are a powerful legal tool designed to protect vulnerable parties during such disputes. These orders, governed by Part IV of the Family Law Act 1996, provide a legal framework for regulating who can occupy a shared family home and under what conditions. However, due to their draconian nature, they are not made lightly. To succeed in obtaining an Occupation Order, advice and representation from an experienced Family Law Solicitor is essential.

What is an Occupation Order used for? 

An Occupation Order is a vital mechanism for addressing the immediate housing needs and safety concerns of parties involved in family law disputes. They are primarily designed to prevent abusive or harassing behaviour and ensure that vulnerable parties, particularly children and victims of domestic abuse, do not become homeless.


Who can apply for an Occupation Order?

To qualify for an Occupation Order three facts must be present:

  1. The Applicant must have a legal right to occupy the property in question. This does not mean their name must appear on the title. If the Applicant and Respondent are married or in a civil partnership, a right to occupy exists for both parties under so-called ‘home rights’. If the couple are separated or divorced and the Applicant’s name appears on the property’s title, they may be able to apply for an Occupation Order,

  2. The property must have been intended to be the home of the Applicant and Respondent, and 

  3. The Applicant and the Respondent must be “associated” as defined in ss62-63 of the Family Law Act 1996, as in they are: 

  • Married or in a civil partnership,  

  • Formerly married or in a civil partnership,  

  • Engaged to be married or be in a civil partnership, 

  • In a relationship for more than six months,  

  • A close family member,  

  • The children (living in the home) parent or grandparent. 

31 October 2023
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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.


Temporary relief

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.