Domestic abuse: Can I force my partner to leave our home?

When you’re in an abusive relationship it can be incredibly difficult to leave. If you have children it can be an even harder decision to make – leaving your home might feel almost impossible.

So, what are your options if you have nowhere else to go but you’re concerned for your safety or the safety of your children?

For many people experiencing abuse, an occupation order can help you to stay in your home without living in fear of the person you’re cohabiting with.

Obtaining an occupation order is subject to strict criteria, so we’d always advise you get legal advice to help you with your application.

What is an occupation order?

An occupation order sets out who is entitled to live in, and enter, the shared or family home where you live, or have lived, with your partner.

If an order is issued in the case of domestic abuse, it forces one party to leave the family home.

It will also stipulate who has to pay, or contribute to, the mortgage, rent or bills for the duration of the order. But it doesn’t change the financial ownership of the property if it is owned by you and your partner.

The judge takes into account the financial positions of each party, and whether a forcible removement would be feasible for the leaving party.

Orders generally last six months, but they can be longer in some circumstances.

How do I get an occupation order?

There are strict criteria for obtaining an occupation order with three essential requirements in order for you to apply for one.

1. As the applicant, you must have a right to occupy the property (either as joint or sole owner or tenant, or you have “matrimonial home rights” due to your marriage and occupation of the property as your home.) 
2. The property has been the home of you and the other person (the respondent) 
3. You and the respondent must be “associated” (S62-S63 of the Family Law Act 1996), either:

• you are or have been married to each other
• you are or have been civil partners of each other
• you are cohabitants or former cohabitants
• you live or have lived in the same household, otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder
• you are relatives
• you have agreed to marry one another (whether or not that agreement has been terminated)
• you have or have had an intimate personal relationship with each other which is or was of significant duration
• you have entered into a civil partnership agreement (as defined by section 73 of the Civil Partnership Act 2004) (whether or not that agreement has been terminated)

When examining an occupation order, the court will make a decision based on the “balance of harm” test. 

This looks at how likely it is that either you or your children will come to significant harm if the order is not made. It also looks at whether more significant harm would occur to you, your children, or the respondent if the order is made. 

You can read more about the balance of harm test in our Ultimate Guide, but it aims to ensure the safety of everyone involved.

Applying for an occupation order

If you meet the criteria for application for an occupation order, then you’ll need to compile a witness statement. Given the strict criteria for application, it’s always advisable to get legal advice to ensure your witness statement addresses the key components that the court will be looking for.

Your witness statement is your opportunity to explain why you need the order and the risks you feel you face if your partner remains in the home.

A hearing will be scheduled and you and your ex-partner will be present at the hearing unless you have applied for an urgent occupation order. 

In this case, a hearing without your partner will be scheduled and an interim order might be issued. You will still need to return to court for a final hearing, where your partner, or ex-partner, will be present. 

Can an occupation order be contested?

Yes, an occupation order can be contested but it can be expensive and time-consuming to do so. 

Your solicitor will be able to discuss options with you that can help secure the best outcome e.g. offering a financial incentive to the leaving party in order to secure the order.

Occupation orders are a civil matter, rather than a criminal one, which can make them harder to enforce which is why getting legal advice is essential if you are experiencing domestic abuse.

If you are living with an abusive partner and feel unable to leave, then you can contact our family law experts in confidence on 0333 344 6302 or email info@blanchardslaw.co.uk.