Background to Occupation Orders
Occupation Orders can provide a level of protection for victims of domestic abuse. Occupation orders allow the victim to apply to the Court to decide on the occupation of the property. Occupation Orders are usually accompanied with a non-molestation order.
Legal aid is also available subject to financial eligibility.
You do not have to be in a relationship to apply for an Occupation Order; however you must be an associated person in order to apply for an Occupation Order. For more information regarding who is an associated person, please see the Non- Molestation Order blog on this link:- https://www.jordanssolicitors.co.uk/2016/09/non-molestation-order/
Criteria to be eligible for an Occupation Order
In order to be eligible, you must be one of the following:
- The owner of the property.
- Have a beneficial interest in the property.
- A tenant.
- A person with Home Rights to the property.
- You or your spouse/civil partner/ cohabitant do not have an entitlement to occupy the property.
- Spouse/civil partner /cohabitant of the person who is entitled to occupy the property.
What the Courts will consider
The courts will look at the ‘balance of harm’ test. This test is a balancing act for the Court to consider between the harm suffered by the applicant and whether or not they are likely to suffer significant harm if the order is not made. The Court will consider the harm caused and if this harm is so significant that it is viewed that the applicant will suffer harm if no order is made. If the Court is of this view, an Occupation Order will be made.
Procedure to apply for an Occupation Order
With notice procedure
The application form is sent to the Court along with a statement in support, setting out details of what has happened and the allegations of molestation etc. In urgent circumstances, the application can be applied for without giving any notice of it to the other party. In that case the application would usually be considered by the Court at a hearing on the same day. The applicant and solicitor would attend Court together to make the urgent application.
Without notice procedure
Alternatively, if the application is made “on notice”, the applicant must serve the application form, statement in support and notice of proceedings on the other party giving him/her notice of the application with a hearing date. At the hearing, the other party is given an opportunity to respond to the application. If the application is not contested, the Occupation Order will continue for a fixed period of time. If the other party decides to contest the application, the Court will give directions for filing of further evidence and list a contested hearing. At the contested hearing, a Judge will hear evidence and decide whether the Occupation Order should be made.
Effect of an Occupation Order
If you are successful with obtaining an Occupation Order against a person, you will be able to occupy the family home without interference from the respondent. The Court may order that the Occupation Order will last until a further order stating otherwise or give a time period up to 12 months.