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

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Under the Family Law Act 1996, the Court are able to grant protection under a Non-Molestation Order prohibiting an ‘associated’ person from molesting another person or a relevant child.

A person is associated if:
a) they are or have been married;

b) they are or have been civil partners;

c) they are cohabitants or former cohabitants (living together as though they were husband and wife or civil partners);

d) they live or have lived in the same household other than merely by reason of being the other’s employee, tenant, lodger or boarder, for example, students or young people living in the same premises but without any type of commercial arrangement;

e) they are relatives e.g. father, mother, step-father, step-father, son, daughter, cousin, uncle, aunt, niece, nephew (please contact us to verify if your case falls within this category);

f) they have agreed to marry one another (whether or not that agreement has been terminated and the application is made within three years of termination);

g) they have entered into a civil partnership agreement;

h) they have or have had an intimate personal relationship with each other that is or was of significant duration;

i) they are both parents of a child or have parental responsibility for a child.

A child can also seek protection if they are living with or might be reasonably expected to live with either party to the application, or is subject to the Adoption Act 1976, the Adoption and Children Act 2002 or the Children Act 1989, or is a child whose interests the court considers relevant.

It should be noted that permission from the court is required for applications by children under the age of 16, which will only be granted if the court is satisfied that the child has sufficient understanding to make the application.

So what constitutes ‘molestation’? – any form of physical, sexual, psychological molestation or harassment that has a serious impact on the health and well-being of the applicant. Violence is not a pre-requisite. Abuse can also be related to financial matters. Controlling, coercive and threatening behavious are included too.

The Court will need as much evidence as possible to support allegations made against the party who is said to have been molesting the applicant and that the court needs to intervene to control the other person’s behaviour.

Emergency applications can be made without giving the other party any notice.

Orders once granted, will only activate once they are personally served on the other party.

Any breaches of a Non-Molestation Order automatically become a criminal matter, and are investigated by the police.

The penalty for being convicted for a breach of a non-molestation order is a fine and/or imprisonment for up to to five years.

If you believe you or someone you know requires protection, please contact us. We will be able to help guide them to get the relevant protection.

Please note that the above is for guidance only. If you require any specific advice for your particular circumstances, you are advised to contact us or seek specialist family law advice.

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