What is an Occupation Order?
The breakdown of a relationship is the most common scenario giving rise to a party applying for an Occupation Order.
Whilst an application can be made to court to resolve financial or children issues in time, often the breakdown of a relationship can in itself present immediate problems with regards to both parties housing needs.
Of course some couples will be able to reside with each other on an amicable basis until they can agree the appropriate division of assets or decide who should remain in a property long term or who should move out.
Unfortunately this is not always the case and in some instances the breakdown of a relationship can lead to violence and threats by one party against the other, or the deliberate creation of an uncomfortable atmosphere making one party feel unsafe remaining in the home.
One party may want to exclude the other from the home or even a certain part of the home if necessary or in some situations one party may want to enforce their right to return to the home if their spouse or co-habitee has kicked them out.
Who can apply?
Ordinarily Occupation Orders are applied for by Spouses and Cohabitants but you can also apply for an Occupation Order if you are an ‘associated person’. A person is associated with another person if:
a) They have been married to each other
b) They are or have been Civil Partners
c) They are relatives
d) They have agreed to marry one another
e) They are Cohabitants or former Cohabitants
f) They live or have lived in the same household providing one of the parties wasn’t the other’s lodger, tenant or employee
Will my application be successful?
When determining whether to grant an Occupation Order the courts take into account all circumstances including:
The respective housing needs and housing resources of the parties and any child The respective financial resources of the parties The health, safety & well being of the parties and any relevant child The conduct of the parties in relation to each other and the overall conduct.
The courts also consider the harm caused to both the Applicant and the Respondent. The courts balance the harm being caused to the applicant and any relevant children with the harm which would be caused to the Respondent and any relevant children if an order was made.
For example, in B v B [occupation order] the wife moved out of the matrimonial home with the couple’s 2 year old child, due to the husband’s violence towards her. She was re-housed by the local authority as a victim of domestic violence and applied for an occupation order to go back into the matrimonial home. The husband, who remained in the property with his 6 year old son from a previous relationship, contested the application. It was ruled that the wife would not be granted the order, because the risk of harm to herself and her child was not as significant as the harm that the 6 year old would suffer if the order was made. The husband was not entitled to be re-housed by the local authority and so the 6 year old would be effectively rendered homeless if the application had been allowed.
Does an occupation order change ownership of the house?
An occupation order must be for a specified period not exceeding 6 months. The order can, if necessary be extended once only, for a further six months. The fact that a court has made an occupation order in favour of one party does not change the legal ownership of the property.
What happens if an order is made and breached?
If a court is satisfied that the Respondent has used or threatened violence against the Applicant or an associated person (i.e. a child) then it will attach a power of arrest to one or more provisions of the order. If the order is breached the respondent can be arrested and put before a Magistrates Court or County Court Judge. A court can impose a penalty of up to 2 years imprisonment or a fine up to £5,000.00.
How Can We Help?
Here at Laker Legal Solicitors we are specialist Family Law Solicitors and represent clients throughout the country. If you need advice on Occupation or Non-Molestation Orders then just give us a call.
