What is an occupation order?

You can obtain an occupation order under the Family Law Act 1996. It confers, declares, restricts or regulates rights of occupation in the family home.

There are five different sections under which an application for an occupation order can be made:

1. Applicant has an estate, interest or home rights in the dwelling-house
2. Applicant is a former spouse or former civil partner with no existing right to occupy
3. Applicant is a cohabitant or former cohabitant with no existing right to occupy
4. Where neither spouse or civil partner are entitled to occupy
5. Where neither cohabitant or former cohabitant are entitled to occupy

How does the Court decide the outcome of an occupation order?

Each of the above sections have slightly different criteria however the court does apply a ‘balance of harm’ test. This states that if it appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to the conduct of the respondent if an order is not made, it is mandatory for the court to make an occupation order unless it appears that the respondent or any relevant child is likely to suffer significant harm if the order is made and that harm is as great or greater than the harm likely to be suffered by the applicant.

The court also needs to take into account all the circumstances, these will include:

• Housing needs and resources of each party
• The financial resources of each party
• The likely effect of any order on the health, safety or well-being of the parties and any relevant children
• The conduct of the parties

Further circumstances will be taken into consideration depending on which section you are applying under.

How long does the occupation order last?

The duration of an occupation order depends on the section under which it was made. Occupation Order durations can range from being unlimited (until death or end of the marriage) to lasting for six months with one extension of not more than six months.

Does there need to be domestic violence involved to obtain an occupation order?

No. There was a case (Re L (Children) (Occupation order: absence of domestic violence) which was heard at the Court of Appeal which found that there is nothing in the law, more specifically s 33(6) that limits the discretion of the court to make an occupation order to cases in which there had been physical violence.