An Occupation Order is a type of court order under the Family Law Act 1996 that sets out who can live in a family home, and in some cases, who must leave it. These orders are often applied for in situations involving domestic abuse or disputes over occupation of a property, but they do not determine long-term ownership or tenancy rights. Instead, they provide short to medium term arrangements to help protect the safety and wellbeing of those involved.
Purpose of an Occupation Order
The primary purpose of an Occupation Order is to regulate who can live in a property and under what conditions. Depending on the circumstances, it can:
- Require one person to leave the home
- Prevent someone from returning to the home
- Allow one person to remain in the home to the exclusion of another
- Divide the property so that both parties live in separate parts
- Set rules for using the home and its contents
It is intended to offer immediate protection or to reduce conflict while other matters, such as divorce, separation, or child arrangements, are resolved.
What an Occupation Order Contains
The terms of an Occupation Order can vary, but typically it will include:
- Who is allowed to occupy the home
- Any restrictions on entering certain areas of the property
- Duration of the order
- Additional provisions (such as arrangements for children or the payment of outgoings)
It is worth noting that an Occupation Order is often coupled with an application for a Non-molestation Order in domestic abuse situations. A Non-molestation Order is a court order that protects individuals, including children, from harassment, threats, or violence by a specific person, often a former partner or someone they’re associated with. The order can prevent the respondent from contacting (by any means), intimidating, harassing threatening, or intimidating the applicant, or from coming within a certain distance of their home, workplace, or children’s school. Breach of a Non-molestation Order is criminal offense and can lead to arrest and further legal action, including imprisonment.
Duration of an Occupation Order
The length of an Occupation Order will depend on the circumstances:
- Short-term orders: Often made in emergency situations and may last until a full hearing is held (usually within days or weeks)
- Longer-term orders: Can last for a set period (e.g., 6 months), with the possibility of extension if needed
The court will always review whether the order remains necessary before extending it.
Emergency vs Non-Emergency Applications
- Emergency (without notice) applications: These are made without the other party being present, usually when there is an immediate risk of harm. A judge can make an interim order the same day. A full hearing will follow so the other party can give their side.
- Non-emergency (on notice) applications: These are made with the other party given advance notice of the hearing. This allows both sides to prepare evidence and attend court. Hearings typically take place within a few weeks, depending on court availability.
Who Can Apply
You can apply for an Occupation Order if you are considered an “associated person” under the Family Law Act 1996. This includes:
- Spouses or civil partners (current or former)
- Cohabitees (current or former)
- Relatives
- People who have agreed to marry or enter a civil partnership
- Parents of the same child
- Parties who have been in an intimate relationship of significant duration
Applicants must also have a legal right to occupy the home, either through ownership, tenancy, or matrimonial rights.
The Process of Getting an Occupation Order
- Seek legal advice to assess your eligibility and the strength of your case
- Complete the court application form (FL401) and prepare a supporting witness statement explaining why the order is needed
- Submit the application to your local Family Court
- Attend the hearing or, in an emergency, attend an initial hearing without notice to the other party
- Court decision: The judge will consider the evidence and apply the relevant legal test
The Balance of Harm Test
When deciding whether to grant an Occupation Order, the court applies the “balance of harm” test. This means weighing up:
- Whether the applicant or any child is likely to suffer significant harm if the order is not made,
against - Whether the respondent or any child is likely to suffer significant harm if the order is made.
If the harm to the applicant or child without the order is greater, the court will usually make the order.
It may still be necessary to consider applying for Occupation and Non-molestation Orders even if there has been Police involvement because of domestic abuse, and where bail conditions are in place. An Order from the Family Court may be necessary even where the bail conditions are deemed insufficient to protect the applicant from further harm or harassment, or if the risk persists despite the bail restrictions.
Appealing an Occupation Order
If you believe an Occupation Order was wrongly granted or refused, you can appeal to a higher court. Grounds for appeal generally include:
- The judge made a legal or procedural error
- Relevant evidence was overlooked
- The decision was unreasonable based on the evidence
Appeals must be made promptly, usually within 21 days of the decision. Legal advice is essential before starting the process, as appeals can be complex and costly.
Alternatives to Appealing
In some situations, instead of appealing, it may be more appropriate to:
- Apply to vary or discharge the order if your circumstances have changed
- Negotiate new arrangements through mediation or solicitor-led discussions
- Wait for the order to expire and present your case if renewal is sought
These alternatives can be faster, less expensive, and less adversarial than a formal appeal. They should be considered where an error of law is not the main issue.
Speak to Our Family Law Team
Occupation Orders are a serious legal step, and the right approach will depend on your personal circumstances. If you need clear, confidential advice, speak with a member of our experienced Family Law team at DTM Legal by calling 01244 354 800 / 0151 321 000. We can guide you through the process and help protect your rights and wellbeing.
