What is an occupation order?
An occupation order regulates for a temporary period of time who can live in the family home (or certain parts of it) and area surrounding a home to enable peaceful occupation. It does not affect a person’s financial interests in the home.
Who can apply?
Former or current spouses, civil partners or cohabitants, or people with a legal entitlement to occupy the property, such as an owner or tenant, can make an application to court for an occupation order. The person asking the court to help is called the applicant and the other person is the respondent.
What is the procedure?
The applicant must complete a court form and provide a witness statement setting out in detail the reasons why they are seeking the order. Usually, the papers will be sent to the respondent, who has a chance to reply by preparing his or her own witness statement. The court will list a date and time for a hearing to decide what should happen.
How does the court decide?
The court applies different tests depending on the relationship status of the people involved and whether the applicant has any legal right to occupy the home. For certain categories of applicant, the court will apply a ‘balance of harm’ test, in which it balances whether any person or child is likely to suffer significant harm if an order is or is not made. In other cases the court must exercise its discretion taking into account all the circumstances. The process is quite complex and your family lawyer will be able to help you understand what applies in your situation.
The order
The order that the court makes will say who can live in the home and who is excluded from it. It can also impose obligations relating to the repair and maintenance of the home, or to payment of the rent or mortgage. The length of time for which the order will last depends on your particular circumstances and is usually for 12 months to enable more permanent living arrangements to be resolved but can be extended. Breach of an occupation order is not a criminal offence, but a power of arrest can be attached to the order, allowing the police to arrest the person in breach.
Undertakings
When considering an occupation order, it is possible to give undertakings, which are binding promises to the court, instead of having the court make an order. The difference is that breach of an undertaking is contempt of court, which can be punished by committal to prison, but it is not a criminal offence and no power of arrest can be attached.
Lyons Davidson will advise on your eligibility for free Legal Aid. Private fixed fee meetings are also available.
