Occupation Orders/Injunctions in Family Law

During the legal process of a divorce, or separation, there are many reasons why couples remain living under the same roof; normally financial. Life in the family home can become tense, stressful and difficult to manage. When that tension spills over into a genuine fear of safety for you and/or any children within the family home, protection should be sought by way of an Occupation Order, or an injunction (see below). 

An Occupation Order is an order that gives couples, within the same property, some kind of regulation of the way they occupy the family home. That might be with one person occupying the entire property at the exclusion of the other, or with both people having to steer clear of particular rooms at particular times,  to limit confrontation within the household. Which order is better will entirely depend on the individual circumstances of each case.

Occupation orders have a very large scope and could do one or more of the following things:

• Enforce a right to stay in the family home
• Enforce a right to return to the family home
• Exclude someone from the family home, even if they have a legal right to be there, for example, excluding a spouse because of their violence and abuse
• Set out who has to pay the rent/mortgage and repair and maintain the family home
• Set out who lives in which parts of the home, where you both have to live in different parts of the same home

Occupation Orders are made under the Family Law Act 1996 and the aim is to protect those suffering any form of domestic abuse. A Non-Molestation Order prevents the perpetrator from pestering, harassing or molesting. However, it does not deal with the issue of the occupation of the family home in a situation where the parties live together. Sometimes Occupation Order and Non-Molestation are applied for at the same time. Collectively these are known as ‘Injunctions’; i.e. ‘injuncting’ or preventing someone from doing something.

Occupation orders are only granted in serious circumstances, and the court will exercise very sparingly its power to exclude someone from their home. There are very strict tests for such an order to be granted.

The requirements that must be met are:-

1. The person applying must have a legal or contractual benefit in the property or a right to occupy. This includes circumstances where the person applying is not named as an owner of the property, but they have ‘Matrimonial Home Rights’ by virtue of their marriage and therefore are entitled to occupy the property as their home.
   AND/OR
2. Both persons must be ‘associated’ in some way i.e. spouse/civil partner/cohabitee, relatives, people who have agreed to marry (even if that agreement has been terminated), have had an intimate personal relationship with one another of significant duration, the list is not exhaustive. 
3. The property is or has been, the home of both parties and was intended to be their home.

When making an application under the Family Law Act for an occupation order, the Court will consider the balance of harm test. The Court’s duty is to balance the harm which will be suffered by the person applying and/or any children if the order is not made, against that of the recipient if the order is made. 

The Court will also consider what other legal remedies are available and what proceedings have been or are intended to be issued.

If, in the absence of an order, the person applying will suffer significant harm, the order must be made unless it is proven that the harm suffered by a recipient would be greater if an order is made. 

In deciding whether to grant an order of occupation, the court will consider the housing needs and housing/financial resources of the parties and children, the likely effect of an order made, including the health, safety or well-being of children and the conduct of the parties.

Occupation orders can be made for a specified period, until the occurrence of a specified event or until a further order is made.  However, in practice, it is unlikely to be for more than six months. Extensions to the Order can be made in certain circumstances, but this is not guaranteed, so it is important to keep the momentum going, sort out your future housing and settle any ongoing proceedings during this time.

Urgent immediate orders can be made, but throwing someone out of their home is regarded as a draconian step which should not normally be made without giving the other person a full opportunity to be heard. If there is clear evidence of risk of harm to the person applying or if the recipient to the application were to be aware of such an application, there would be a risk of harm then emergency applications without any notice to the recipient can be made. This is an exceptional circumstance, and the court would be very reluctant to make such orders except usually where there is clear evidence of violence. If there is no immediate risk of harm then an application would be made with the recipient being notified and they would receive a copy of the application and a hearing would then be listed for both parties to attend.

Breaching an Occupation Order is not automatically a criminal offence, but a Power of Arrest (POA) can be attached to the order. This means that the order must be sent to your local police station, and if a breach is reported, the police can arrest that person. The court will only consider attaching a POA if the court can see clear evidence of violence or threats to use violence towards the person making the application. The penalty for breaching an occupation order is punishable by up to two years in prison or a fine of up to £5,000.

If a POA is not attached to the order and it is breached, an application will need to be made to the court for a Warrant of Arrest. This entitles the police to take the assailant into custody. 

If an occupation Order is made, it does not change the ownership of the property. It simply confirms for a specified period who can remain living in the property or in what parts of it. 

If you wish to seek advice about an application for an occupation order, or indeed if you are the recipient of such an application,  please do not hesitate to make an appointment for a free consultation with one of our knowledgeable members of staff who would be happy to discuss this with you.