What is an occupation order?

What is an occupation order?

An occupation order is a type of injunction which regulates who can, or cannot, live in the home or certain parts of it. They are serious orders usually made in the context of domestic abuse as they may suspend a party’s right to occupy their own property.

Following an application for an occupation order, a judge will make a decision as to who should or should not reside in the home. This can be the entirety of the property or certain sections of it. For example, it may prohibit someone from entering the bedroom and ensuite bathroom. 

In addition, occupation orders can exclude someone from an area around the home (usually around 100 metres). 

Who can apply for an occupation order?

In order to apply for an occupation order, you must be associated with the respondent (the person you are applying for the order against). The categories of associated people are as follows:

• You are or have previously been married to each other
• You are or have previously been civil partners of each other
• You are or have previously been cohabitants
• You live or have lived in the same household (excluding if you live together merely by reason of being a tenant, lodger or boarder)
• You are relatives
• You have agreed to marry one another (even if the engagement has been called off)
• You have or have had an intimate personal relationship with one another for a significant duration
• You have entered into a civil partnership agreement
• In relation to a child, you are the parent of the child or have or have had parental responsibility for the child

There are several different sections of the Family Law Act 1996 which an applicant can apply under, depending on their circumstances.

What will the court consider?

An occupation order is seen as a very draconian measure and therefore the court will need to give careful consideration to a number of factors before making an order. 

Balance of harm

The court has a duty to balance the harm caused to the applicant, the respondent and any children if the occupation order was or was not made. 

If you or any children are likely to suffer significant harm from the conduct of the respondent if an order is not made, the court must make an order.

Additional considerations

The court should also consider the following:

• The housing needs and resources of each of the parties and any children.
• The financial resources of each party.
• The effect of any order on the health, safety and wellbeing of each of the parties and any children.
• The conduct of each of the parties.

Power of arrest

If the court is satisfied that the respondent has used or threatened violence against you or a child, a power of arrest will be attached to the order. 

What happens at an occupation order hearing?

The court process to be followed will depend on whether the application is made on notice or without notice.  

If an application is made without notice to the respondent, a hearing will usually be listed quite quickly, at which the Judge may make an interim occupation order and list a return date. This is because it is important that the respondent is given an opportunity to respond. If an interim order is made, this will last until the date of the next hearing.

If an application is made on notice, a copy of the application, witness statement and notice of hearing must be sent to the respondent no less than two days before the hearing. Both parties will therefore have the opportunity to set out their argument at the hearing and a Judge will be able to make an order if necessary.

How long does an occupation order last?

The length of an occupation order will depend upon which section of the Family Law Act the application was made but it is usually granted for six months.

What is the impact of an occupation order?

An occupation order gives the applicant the right to reside in a property, to the exclusion of the other party. It can also ensure that the other person cannot come within a certain distance of the property, which can provide peace of mind for the applicant without worrying about bumping into the respondent outside the house.  

An occupation order can also set out who is responsible for certain household payments, which can provide financial security for the applicant.  

An application can also be beneficial for any children of the family, who benefit from the stability of remaining in the family home, rather than potentially having to move into temporary accommodation or a refuge. Arrangements for the children to continue to see the respondent may also need to be carefully considered to ensure that the terms of the occupation order are not breached.

What happens if the occupation order is breached?

If a power of arrest is attached to an occupation order which is then breached, the respondent can be arrested without the need to obtain a warrant. 

If an occupation order is breached but there is no power of arrest, you will need to apply for the issue of a warrant for the arrest of the respondent. You will need to satisfy the court that the respondent has breached the order.

The penalty for breaching an occupation order is a fine or imprisonment.

Frequently asked questions

My partner offered to give an undertaking instead. What is an undertaking and should I agree to this?

An undertaking is a solemn promise to the court to do or not do a certain behaviour. A breach of an undertaking is enforceable as contempt of court and is a civil offence. 

If a power of arrest should be attached to an order, for example in cases of domestic violence, then undertakings should not be accepted. 

I need to apply for an occupation order but I am worried I won’t be able to pay the mortgage if my partner moves out of the property. What should I do?

When granting an occupation order, the court can also impose certain conditions such as making one party responsible for the upkeep of the property or continuing to pay the mortgage and utilities. 

The court will consider your and your partner’s ability to pay for these expenses, taking into consideration any costs they would have for alternative accommodation if they needed to leave the property due to an occupation order. 

If you are unable to pay for the bills and utilities, this should not prevent you from obtaining an occupation order.

[NOTE: In some limited circumstances, and subject to means testing, legal aid may be available for help with legal fees. Please note that Weightmans LLP does not offer legal aid services.]

What factors are considered by the court before making, or if overturning an occupation order?

The court will consider the balance of harm test. this includes not only the risk of harm to the applicant or any children if an order is not made, but also the risk of harm to the respondent if an order is made. 

The court will then also consider the following:

• The housing needs and resources of each of the parties and any children.
• The financial resources of each party.
• The effect of any order on the health, safety and wellbeing of each of the parties and any children.
• The conduct of each of the parties.

Can an occupation order be made without notice?

An interim occupation order may be made without notice to the respondent. However, 

without notice orders are unusual and the order does not come into effect until it is served upon the respondent.  

The court will usually also order a return hearing date to provide the respondent with the opportunity to set out their case. If no return date is given, the court will provide a notice period in which the respondent can apply to vary or discharge the order.

Can you sell a house with an occupation order?

The existence of an occupation order alone will not hinder a sale. Whether a property can be sold will depend on both the legal and beneficial ownership of the property and the relationship between the parties. For example, if the property is owned by the respondent (either solely or in joint names with the applicant), the applicant cannot sell without the respondent’s agreement or an order of the court.  Even if the property is held in the applicant’s sole name, there may be restrictions on selling the property, for example if the respondent has home rights.