What is an occupation order and when can it be granted?

An occupation order is an order that determines who can live in or enter a property. Occupation orders are intended to provide a short-term solution pending a final settlement, and they can deal with occupation of the home in situations where a relationship has broken down and also where there is domestic abuse.

Types of occupation order

The court’s power to make an occupation order derives from sections 33 and 35–38 of the Family Law Act 1996 (FLA 1996). Under those sections, the court may make the following types of order:

• a declaratory order, which declares, extends or grants a right to occupy: examples will include a declaration that the applicant is entitled to occupy the property, or a declaration to enforce their right to occupy, or a declaration to allow them to enter the property if they have been excluded from it
• a regulatory order, which either regulates the occupation of a property, excludes one party from the property, restricts a party’s right to occupy, or excludes a party from a defined area around the property: examples will include stopping a party from entering the property, or preventing them from entering the street or vicinity where the property is located.

The application will be made by the applicant, against the respondent and can only be made by “associated persons”. Eligibility depends on the applicant’s connection with the property and relationship with the respondent and that also determines under which section of the Act the application is made and the considerations of the court. If granted, an occupation order can stipulate:

• who can occupy the property
• how long they can occupy the property – this may be until a specified event or until the court makes a further order
• whether any party will be responsible for mortgage or rent payments, or repair or maintenance costs
• whether the party who will occupy the property is to make payments to the other party by way of compensation
• who may use any furniture or property contents and who is to take care of them.

The court may agree to attach a power of arrest to the occupation order if the respondent has used or threatened violence against the applicant or a relevant child. Breach of the order can lead to fines or prison.

Where the applicant and respondent are tenants of the property, the court may also require that the respondent gives an undertaking that they will not seek to terminate the tenancy.

What factors do the courts consider?

When deciding whether to grant an occupation order, the court can do so where it considers it just and reasonable to do so but must consider different criteria depending on the section under which the application has been made.

The court will look at all the core circumstances of the case including the financial resources of the parties, the housing needs and resources of each party and relevant children, the effect of making or not making an order on the health and safety and wellbeing of the parties and relevant children, and the conduct of the parties in relation to each other and otherwise.

The court may also consider other relevant factors such as when the marriage ended, when the parties last lived together, and any ongoing disputes in financial remedy proceedings.

The court will also look to apply the balance of harm test. The balance of harm test requires the court to balance the harm (physical, intellectual, emotional, social or behavioural) that would be caused to the applicant, the respondent and any relevant children if the occupation order was or was not made. If it appears that the applicant or any relevant child would be likely to suffer significant harm attributable to the conduct of the respondent if an order is not made, then the court must make an order.

What happens if an occupation order is breached?

The consequences of a breach of an occupation order by the respondent will depend on whether a power of arrest was attached to the order. If a power of arrest was attached, the applicant should inform the police and the respondent can be arrested without the need to obtain a warrant. If a power of arrest was not attached, the applicant will need to apply for the issue of a warrant for the respondent’s arrest.

It is common practice for legal advisors to ask the court, when making an occupation order, to attach a penal notice that stipulates that the respondent must obey the contents of the order and that if they do not, they will be guilty of contempt of court and may be sent to prison.

Occupation orders can provide immediate protection in situations involving domestic violence or harassment, granting the applicant legal rights to remain in their home (with any relevant children) without fear of harm, and can be enforced by police if violated. If you are a victim survivor of domestic abuse and want to commence divorce proceedings or you going through a divorce, find more information about the process here.

If you have questions or concerns about occupation orders, please contact Laura Brown.