What is an Occupation Order?
An occupation Order allows the Court to decide who should live, or not live, in the home or any part of it. The Order can also exclude the other person from an area around the home. The power to make an Order is contained in sections 33 and 35 to 38 of the Family Law Act 1996.
Where an occupation Order is in force it can also deal with who pays the rent or mortgage and outgoings on the property, who has to maintain the property, what furniture and contents can be used and whether the party in occupation should pay a "rent" to the other person.
Who can apply?
To start off with, you have to be "associated" with the other person (known as the respondent) as follows:
- you are or have been married to or civil partners of each other or have agreed to marry/enter into a civil partnership; or
- you have lived together in the same household in a family scenario; or
- you have had an intimate physical relationship of significant duration; or
- you are parties to the same family proceedings.
If you were married/in a civil partnership with the other person you are entitled to apply as of right, irrespective of any right to occupy the home, even if you are divorced/have obtained dissolution. You are also entitled to apply as of right if you were cohabiting.
For all other scenarios you have to have lived in the property with the other person as your home, or had intended to do so, and have a legal right to occupy the home. This covers, for example, cohabitees who buy a home together but never move in. It would not cover a property bought to rent out that one of you wants to move into after separation.
What test applies?
The test depends on which section of the Act you are applying under. However, in general terms the Court will look at housing needs and resources of the parties and any child, financial resources, conduct and the likely effect of the Order on the health, safety and well-being of any party or relevant child.
Where the relationship had already broken down the Court will also look at the nature of the relationship, how long the relationship lasted and how long the parties have been apart for. The Court will also consider what other legal remedies are available and what proceedings have been or are intended to be issued.
Immediate Orders can be made, but throwing someone out of their home is regarded as a draconian step which should not normally be made without giving the other person an opportunity to be heard.
How long will it last?
The Order can be limited up to 6 months in some cases or up to an indefinite period, depending which part of the Act you apply under. However, in practice it is unlikely to be for more than 6 months. During that time you need to sort out ownership of the home, so it is important that you do not lose momentum and stop once the Order has been obtained if you are married or own or rent the home together. Extensions to the Order can be made in certain circumstances, but this is not guaranteed.
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