Occupation Orders Explained

Occupation Orders Explained

By Nahanni Simcox

If you are going through a divorce or separation and you are having difficulties in establishing who will live at the family home, the court can make an occupation order.

An occupation order will set out details of how your home will be used. It can be particularly useful if there is domestic violence or abuse in your relationship, as the order can exclude someone from a property even if they jointly own or rent it with you.

Who can apply to the court for an occupation order?

You need to be associated with the other individual in the property. This means that you must be:

  • Married, in a civil partnership or engaged to the other person
  • Have lived with the other person as a family
  • Have had an intimate relationship with them for a significant period of time
  • You are both involved in the same family law proceedings

You do not need to be a named owner of the property or have a beneficial interest in the property to apply for an occupation order. It is enough that the property has been the home of you both or was intended to be a home for you both.

What does the court take into account when deciding whether to make an occupation order?

The court will look at two issues:

  • The balance of harm; and
  • The core criteria

The balance of harm

The court will consider what harm might be caused to either you or the other party or any children if an order was to be made. It will also consider what harm there might be if an order was not made. Where the court believes that the applicant or a child is likely to suffer significant harm if an order is not made, it is legally required to make an order.

The core criteria

The court can choose to look at the core criteria of the case in any event when making its decision. Even if the balance of harm test fails, it can decide to make an occupation order if the core criteria warrant it.

If the applicant has the right to occupy the property, the court can consider:

  • The housing needs of the parties and any child and the available housing resources
  • The financial resources of both parties
  • The likely effect if an order is made or if no order is made
  • The health, safety and wellbeing of the parties and any child
  • The conduct of the parties

If the applicant is a spouse or civil partner or former spouse or civil partner but they are not otherwise entitled to an occupation order, the court can look at the following issues:

  • How long it has been since the parties lived together
  • How long it has been since the marriage/ civil partnership ended
  • Ongoing legal action in respect of ownership of the property

Where the applicant was not entitled to an occupation order and is a former cohabiting partner of the respondent, the court can consider:

  • The parties’ relationship and how long it lasted
  • Any children involved in the situation
  • How long since the parties’ relationship ended

What can the court order when making an occupation order?

The court has a range of options open to it, including:

  • Giving someone the right to stay in the home
  • Ordering that someone can return to the home
  • Excluding someone from the family home, even if they have a right to live there otherwise, for example, if they are a joint owner – this is generally used in domestic violence and abuse cases
  • Ordering one party to pay the mortgage or rent and any associated outgoings and maintenance
  • Specifying which parts of the home each party can access and excluding someone from certain areas of the property

Contact us

If you would like to speak to one of our expert family lawyers, ring us on 01392 848923 or email us at nahanni.simcox@everys.co.uk