Protection Against Abuse
Part 2 – Occupation Orders

An Occupation Order is an Order under the Family Law Act 1996 conferring, declaring, restricting or regulating rights of occupation in the family home between family members or those involved in a domestic relationship.

An Occupation Order can be a declaratory order meaning that it can declare existing occupation rights in a home, extend occupation rights beyond the termination of a marriage or grant occupation rights in a home to non-entitled applicants.

An Occupation Order can also be regulatory meaning that it can order one party to leave the home, suspend occupation rights and/or prohibit one party from entering or re-entering the home or part of the home, require one party to allow the other to enter and/or remain in the home, regulate the occupation of the home by either or both of the parties, terminate occupation rights and exclude one party from a defined area in the vicinity of the home.

If someone is being abused by their partner or family member, they can seek an Occupation Order to secure their safety; whether it is excluding the perpetrator from the home entirely or from a part of the home.

Eligibility for application

• If the applicant has an estate, interest or home right in the home, they can apply;
• If the applicant is a former spouse or former civil partner with no existing right to occupy the home, they can apply;
• If the applicant is a cohabitant or former cohabitant with no existing right to occupy, they can apply;
• Where neither spouse or civil partner are entitled to occupy;
• Where neither cohabitant or former cohabitant are entitled to occupy.

It is very important that the potential applicant checks if they fall into one of these categories otherwise they will have no basis to make an application.

Criteria for an Order

The Court will take into account parts of the following when determining whether to make an order or not, depending on the category within which the application is made;

• The housing needs and housing resources of each of the parties and of any relevant child
• The financial resources of each of the parties
• The likely effect of an order, or decision not to grant an order, on the health, safety or well-being of the parties and any relevant child
• The conduct of the parties
• The length of time that has elapsed since the parties ceased to live together
• The length of time that has elapsed since the marriage or civil partnership was dissolved or annulled
• The existence of any pending proceedings between the parties under the Matrimonial Causes Act 1973, CPA 2004 ChA 1989, Sch 1 or relating to legal and beneficial ownership of the dwelling-house
• The nature of the parties’ relationship and the particular level of commitment involved in it
• The length of time during which they cohabited
• Whether there are or have been children who are children of both parties or for whom both parties have or have had parental responsibility
• The length of time that has elapsed since the parties ceased to live together

The Court also conducts a balance of harm test to determine whether the Applicant or any relevant child is likely to suffer significant harm attributable to the conduct of the Respondent if an order is not made, in which case an order is made unless it appears that the Respondent or any relevant child is likely to suffer significant harm if the order is made and that harm is as great or greater than the harm likely to be suffered by the Applicant.

Please refer to Part 1 to check if you and the perpetrator of abuse fall within the definition of ‘associated persons’ if you are family members etc.

It is very common for these applications to be made alongside an application for a Non Molestation Order (please refer to Part 1 – Non Molestation Orders).

Should you require assistance on how to follow through with an application for a Non Molestation Order and/or Occupation Order, please do not hesitate to contact us. We would be more than happy to help.

Please note the above information is for guidance only and does not constitute legal advice. Should you require any advice and guidance, please contact us or a specialist family solicitor