When Can an Occupation Order Be Made?
An Occupation Order infringes on a person’s right to occupy their home, so courts issue such orders only when necessary. The applicant must show they are associated with the respondent. This includes relationships such as:
- Married or civil partners (current or former).
- Cohabitants or former cohabitants.
- Parents of a child together.
- Those in certain family relationships (e.g., siblings, in-laws).
The relevant sections of the Family Law Act 1996 depend on the applicant's and respondent’s status:
- Section 33: For applicants entitled to occupy the property (e.g., as an owner or tenant).
- Section 35: For ex-spouses or ex-civil partners who no longer have a legal entitlement to the property.
- Section 36: For cohabitants or former cohabitants without entitlement.
- Sections 37 and 38: For parties where neither has an entitlement to occupy the property.
Applying for an Occupation Order
An application for an Occupation Order can be made:
- Ex-parte (Without Notice): The respondent is not informed beforehand, typically in urgent situations.
- On Notice: The respondent is notified of the application and given an opportunity to argue their case in court.
The Significant Harm Test
The significant harm test, under Section 33(7) of the Family Law Act 1996, is critical in determining whether an order should be made. The court considers:
- If no order is made, will the applicant or child suffer significant harm attributable to the respondent’s conduct?
- If no, the test is not satisfied, and the court may not make an order.
- If yes, the court moves to step 2.
- If an order is made, will the respondent or a relevant child suffer significant harm?
- If no, the court must issue the order.
- If yes, the court assesses whose risk of harm is greater to decide whether to make the order.
If the significant harm test is not satisfied, the court will consider additional factors under Section 33(6), including:
- Housing needs and availability of alternative accommodation.
- Financial resources of the parties.
- Likely effects of the order on health, safety, and well-being.
- Conduct of the parties toward each other.
Reluctance to Grant Orders
Courts are generally reluctant to issue Occupation Orders unless exceptional circumstances exist. These orders are considered draconian because they can remove a person from their home. However, they may be granted in cases where immediate protection or clarity over occupancy is required.
Breach of an Occupation Order
- Breaching an Occupation Order is not automatically a criminal offence unless a power of arrest is attached to the order.
- A power of arrest is typically included if there is evidence or concern that the respondent has used or threatened violence against the applicant.
Penalties for Breach:
- If a power of arrest is attached, breaching the order can lead to up to two years in prison or a fine of up to £5,000.
- If no power of arrest is included, the applicant must apply for a warrant of arrest, providing evidence of the breach.
Conclusion
Occupation Orders provide critical protection in disputes over property occupancy, particularly in cases involving domestic violence or significant harm. However, courts issue these orders sparingly due to their profound impact on the respondent’s rights.
If you’re considering applying for an Occupation Order or facing one, understanding the legal requirements and potential consequences is essential. For help with related applications, such as completing Form C100, explore our free guide to get started.
