This article aims to provide a brief introduction to Occupation Orders, including the definition, who can apply, the legal test involved, the consequences of breaching an Occupation Order and how to apply.
Definition
An Occupation Order is a form of injunction which is issued under the Family Law Act 1996. It determines who is entitled to reside in a property and may restrict or exclude parties from certain areas of the home or the home as a whole. These orders are particularly relevant in situations involving domestic abuse, where one party requires legal protection and security within the home.
Who can apply?
In order to apply for an Occupation Order under the Family Law Act 1996, a person must meet certain eligibility criteria. These are generally based on their legal interest in the property and the nature of their relationship with the other party involved.
A person may apply under one of the following sections:
Section 33: The Applicant has a right to occupy the home by virtue of beneficial estate, interest, contract, enactment, or home rights. This includes being the sole or joint owner, a tenant or joint tenant, or having ‘home rights’ through marriage or civil partnership.
Section 35: The Applicant is a former spouse or former civil partner who no longer has a right to occupy the property, but it was previously their shared residence or was intended to be.
Section 36: The Applicant is a current or former cohabitant with no legal right to occupy the home, but it was a property in which they lived together or intended to live together.
Section 37: Where one spouse or civil partner resides in the property but neither hold an entitlement to remain in the property.
Section 38: Where current or former cohabitants are living in a property which is the home in which they cohabit or cohabited but neither of them is entitled to remain in the property.
For the purposes of this article, the focus will be on section 33 Occupation Order applications.
What test will the court consider?
When determining whether to grant an Occupation Order under section 33 of the Family Law Act 1996, the court carries out what is known as the balance of harm test. This process involves looking closely at the potential risks and impact on both parties.
One of the key questions the court must ask is whether the Applicant or any child involved is likely to suffer significant harm if the order is not made (Chalmers v Johns [1999] 1 FLR 392).If such harm is likely, the court is generally required to grant the order unless it is clear that doing so would cause greater harm to the Respondent.
In situations where this threshold is not met, the court still has the discretion to issue an Occupation Order. In those cases, the decision is guided by the core criteria test set out in section 33(6) of the Family Law Act which include:
- The housing needs of both parties, including whether alternative accommodation is available;
- Each parties’ financial circumstances and ability to secure housing;
- The impact that making or refusing the order may have on the physical and emotional welfare of all parties, including the children; and
- The nature of the parties’ conduct towards one another.
How long do Occupation Orders last?
Different sections under the Family Law Act have different durations for an Occupation Order. Under s 33(10) of the Family Law Act, an Occupation Order can be made to last for a specified period, remain in place until a specified event takes place, or continue until the court makes a further order.
What happens if an Occupation Order is breached?
Breaching an Occupation Order is not automatically a criminal offence. However, if the court believes the Respondent has used or threatened violence against the Applicant, it can attach a power of arrest to the order. Where the power of arrest is in place, the police may arrest the Respondent without a warrant if the order is breached.
If no power of arrest is attached, the Applicant may apply to the court for a warrant for arrest. This requires, sufficient evidence to convince the court there are reasonable grounds to believe the order has been breached.
The consequences of breaching an Occupation Order depend on the nature and severity of the incident. The court may impose a fine, a custodial sentence of up to two years, or both. Ultimately, the penalty will reflect the specific circumstances of the case.
How can I apply?
To apply for an Occupation Order, you must complete Form FL401 and submit it to the court. Currently, there is no fee for making this type of application.
Members of Becket Chambers can assist in proceedings relating to Occupation Orders; please contact the clerks via clerks@becket-chambers.co.uk for more information.
