An Occupation Order is a legal remedy issued by the family court to determine who has the right to live in a family home following a relationship breakdown. Most commonly used in cases of domestic abuse or harassment, these orders can be essential in ensuring the safety and wellbeing of the applicant and any children involved.
When applying for an Occupation Order, the evidence you present plays a vital role. The courts need to understand the circumstances leading to your application and assess the likely impact on everyone living in the property.
What is an occupation order?
An Occupation Order is made under the Family Law Act 1996 and can set out who is allowed to live in the family home, who is excluded or how different parts of the property should be used. It does not change the ownership of the property but gives temporary arrangements for living there, typically for up to six months, with the possibility of extension.
You do not need to own the property to apply. If you are associated with the respondent – for example, through marriage, civil partnership, cohabitation or parental responsibility – and have lived in the home together, you may be eligible to apply for this type of order.
When is an occupation order appropriate?
Occupation Orders are often sought when one party feels unsafe continuing to live in the property with the other or where a relationship has broken down but neither party is willing or able to leave the home voluntarily. These orders may also be necessary to protect children from harm or in cases where one person is being unlawfully excluded from a property they have a right to occupy.
The court’s priority is always the safety and welfare of the individuals involved, especially children. If there is a history of abuse, threats or harassment, the court will look closely at the evidence to decide whether exclusion or regulation of the property is necessary.
What kind of evidence is needed?
To apply for an Occupation Order, you’ll need to provide a strong case backed by clear, credible evidence. The court will expect a written statement outlining the facts and reasons for your application, including:
- A detailed account of your relationship and living arrangements.
- A timeline of relevant events, particularly any incidents of abuse or threats.
- The current living situation and why it is no longer safe or viable.
- The impact the situation is having on you or any children involved.
Supporting evidence can include police reports, medical records, photographs of injuries or damage, text messages or emails showing threats or controlling behaviour and statements from witnesses such as neighbours, friends or professionals. The more detail and documentation you can provide, the stronger your case will be.
How does the court assess your evidence?
Once you’ve submitted your application and evidence, the court will assess your case using several legal criteria. One of the main considerations is whether you or anyone else in the household is at risk of harm. This assessment is known as the “balance of harm” test.
If the court believes that you (or a child) will suffer significant harm if the order is not made and that this harm outweighs any harm the respondent might experience if they are excluded, the order is likely to be granted. In some situations, the court may issue an interim order to provide immediate protection while a full hearing is scheduled.
The court will also consider:
- The housing needs and financial resources of both parties.
- The effect of any order (or lack of order) on the health, safety and wellbeing of those involved.
- Each party’s legal rights to occupy the property.
- The conduct of both parties.
While not every case requires proof of physical violence, the court does require evidence of real and substantial risk. Emotional abuse, coercive control and harassment can also support an application.
Applying without the other person’s knowledge
In urgent cases, it may be possible to apply for an Occupation Order without the respondent being notified in advance. This is called a “without notice” application. It is typically used where there is an immediate threat of harm or where notifying the other party may put the applicant at further risk.
If a “without notice” order is granted, a follow-up hearing will be held to give the respondent a chance to present their side. The court will then decide whether the order should be continued, varied or discharged.
What happens after the order is granted?
If the court grants an Occupation Order, the terms will be legally binding. This means the person excluded from the property must leave by the date stated in the order and may be prohibited from returning or occupying certain parts of the home.
Breach of an Occupation Order is a serious matter and could result in the police becoming involved or even criminal penalties if a Power of Arrest is attached. It’s important to keep a copy of the order to show to authorities if necessary.
The duration of the order will depend on the circumstances but usually lasts between six months and a year. In some cases, it can be extended or replaced by a more permanent solution, such as a transfer of tenancy or other legal action.
Speak to a family law solicitor about your options
Applying for an Occupation Order is a significant step and often taken in emotionally difficult circumstances. Whether you’re worried about your safety, trying to protect your children or facing an unfair living arrangement, it’s important to seek legal advice tailored to your situation.
At Osbourne Pinner Solicitors, our expert family law team can guide you through the process with sensitivity and professionalism. We’ll help you prepare the strongest possible case, gather the necessary evidence and support you through every stage of the application.
We offer a free 30-minute consultation to assess your situation – held remotely or at our offices in Harrow, Canary Wharf, Piccadilly Circus or Manchester.
Contact us today using the form below, call 0203 983 5080 or email [email protected] to speak with a family solicitor. Whether you need urgent protection or just want to understand your rights, we’re here to help.
