An Occupation Order is often used in circumstances where there has been a case of domestic violence. The Order will therefore state who has the right to stay at the family home and who is excluded from it. The Order can also regulate who can enter the property and its surrounding areas.
Why might someone need an Occupation Order?
Under the Family Law Act 1996, victims of abuse can apply for a non-molestation order which prevents the victim being harassed or molested. However, a non-molestation order fails to deal with who can occupy the family home. Therefore, an occupation order provides greater protection.
Who can apply for an Occupation Order?
There are three requirements that must be met:
- The applicant must have a right to occupy the property.
- The property must be the home of the applicant and the respondent.
- The applicant and respondent must be ‘associated’ (s 62 Family Law Act 1996):
- Married to each other or in a civil partnership.
- Cohabitants or former cohabitants.
- They live or have lived in the same household.
- They are relatives.
- Engaged to be married or be in a civil partnership.
- In a relationship for more than six months.
- In relation to a child, they are both parents or have had, parental responsibility.
- They are parties to the same family proceedings.
What the Court will consider when granting an Occupation Order?
The court will grant an occupation order if it believes the applicant will suffer significant harm if the order is not made. The court will apply the s33(7) Family Law Act 1996 Balance of Harm test. This test balances the harm the applicant or child would suffer if the Order were not made to the harm that may be caused to the respondent or child if the Order is made.
Where the court is unable make an Order based on the Balance of Harm test, the court must consider all circumstances of the case (s 33(6) Family Law Act 1996). This includes the housing needs and finances of the parties, their behaviour along with the safety and wellbeing of children and lastly, the mental and physical health of the applicant.
An application for an occupation order can be made within 24 hours in an emergency and usually, the Order will last for six months.
At Audley Chaucer, we are experienced in dealing with all family law matters and have the expertise to handle all types of cases. Contact Kay Stewart or John Szepietowski for an initial discussion.