Occupation Orders are draconian by nature as they are essentially used to oust somebody from their property and as such will only granted in limited circumstances and there are strict requirements which must be met before the court will make an Occupation Order.
If you need specialist legal advice on an Occupation Order, please do contact our specialist family lawyers.
The court has the power to grant Occupation Orders as contained in sections 33 and 35 to 38 of the Family Law Act 1996. An Occupation Order allows the court to regulate the occupation of a property, the court can either make an order ousting the Respondent or in some cases the court can regulate the occupancy of the property including the use and timings of certain areas or rooms in the property.
Who can apply?
The first requirement is that the Applicant must be ‘associated’ with the Respondent in one of the following ways:
- The Applicant is married to or in a civil partnership with the Respondent,
- The Applicant was previously married to or in a civil partnership with the Respondent,
- The Applicant is engaged to be married to or be in a civil partnership with the Respondent,
- The Applicant has been in a relationship with the Respondent for more than six months,
- The Applicant is a close family member of the Respondent
In relation to any child associated with the proceedings, anyone with parental responsibility can also apply for an Occupation Order.
How will the court decide whether to make an Occupation Order?
The legislative criteria for making occupation orders is in the application of S.33 of the Family Law Act 1996.
When making an occupation order the court will give regard to the criteria on a case-by-case basis, however the court has a wide discretion in making such orders. In doing so the court must weigh up the risk of not making an order against making an order, otherwise known as the balance of harm test taking into account :
- The housing needs and resources of each party and of any relevant children
- The financial resources of each party.
- The conduct of the parties in relation to each other and otherwise.
In making an Occupation Order having considered the criteria the court will make an order in circumstances where if an order is not made the Applicant will suffer significant harm in the absence of an Order.
Having applied the criteria and considered the balance of harm test including the effect of not making an order on the health, safety or well-being of the parties or any relevant children if the order were not granted.
The risk of a costs order
As mentioned above, Occupation Orders are considered to be draconian, equally where an application for an Occupation Order is shown to be an abuse of process or that the S.33 criteria is not met, either in circumstances where there are other resources available to the Applicant or where the application is shown to be vexatious, the Applicant can be at risk of a costs of a costs order.
However, where the Respondent’s conduct in the proceedings is unreasonable and the Respondent refuses to vacate the property voluntarily, or fails to give assurances the Respondent can be at risk of a costs order.
Where appropriate occupation orders can be effective and provide protection to the Applicant and to any dependent children in difficult circumstances.