Not everyone can apply for an Occupation Order. In order to apply for an Occupation order the parties must be classed as ‘associated persons’. Under Section 62-63 of the Family Law Act 1996 a person is defined as ‘associated’ with another person if they: –

• are or have been married to each other;
• are or have been civil partners of each other;
• are a cohabitant or a former cohabitant;
• live with or has lived in the same household, otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder;
• are relatives;
• have agreed to marry one another (whether or not that agreement has been terminated);
• have or have had an intimate personal relationship with each other which is or was of significant duration;
• 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);
• is a party to the same family proceedings (other than proceedings under this Part).

The decision the Court has to make in respect of who can live in a property is not an easy decision for them to make. The Court has to consider lots of different factors before deciding who can remain living there and who cannot.

The Court applies what is called the ‘Balance of Harm’ Test. The Court will consider:  

(a)the housing needs and housing resources of each person and of any relevant child;

(b)the financial resources of each person;

(c)the likely effect of any order, or of any decision by the court not to make an Occupation Order, on the health, safety or well-being of each person and of any relevant child; and

(d)the conduct of each person in relation to each other and otherwise.

The Court has to consider the risk to any person including children and therefore if the Court believes that the applicant (person applying for the Order) or any relevant child is likely to suffer significant harm attributable to conduct of the Respondent (opposition) if an order is not made then the Court should make the Order. The Order should not be made however if the Court believes that:

(a)the respondent or any relevant child is likely to suffer significant harm if the order is made; and

(b)the harm likely to be suffered by the respondent or child in that event is as great as, or greater than, the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made.

If an occupation Order is made, it does not change the ownership of the property, it simply confirms who can remain living in the property. The Court can also make an Order as to who shall pay the mortgage or rent, repair and maintain the property. The Court will only make an occupation Order if it is really necessary as it prevents a person who is legally entitled to occupy a property from living in their home. An Occupation Order can only be made for 6 months.

You would need to complete an FL401 application and send this to the Court. There is no Court fee payable. You will need to also prepare a statement in support of your application.

You can apply for an Occupation Order on an emergency basis if you or a child is at significant risk of harm. You can apply without notice to the Respondent if you are at risk of harm or if the Respondent knew you were applying for an Occupation Order and there would be a risk that they would pressure you not to make an application or withdraw it if it has already been made. If there is no immediate risk of harm then you would apply on notice which meant that the Respondent would receive a copy of your application from the Court and a hearing would then be listed for you both to attend.

WPC Lawyer understands the complexities and sensitivities surrounding Occupation Orders, and we are committed to providing professional and compassionate assistance to individuals navigating through these legal processes. Our team of experienced lawyers specializes in offering Occupation Order services, aiming to safeguard the well-being and security of our clients. Whether you are seeking protection from domestic abuse or trying to establish your right to occupy a shared residence, our experts will guide you through the legal intricacies, ensuring your case is handled with the utmost care and expertise. We prioritize the safety and rights of our clients, tailoring our services to address the unique circumstances of each case. At WPC Lawyer, we strive to empower individuals facing challenging situations, offering dedicated support throughout the Occupation Order application process. 

Contact us today at info@wpclawyers.co.uk.