The nature of occupation orders
An occupation order is an injunctive remedy which is designed to protect victims from acts of domestic violence. The order regulates who can live in the family home or enter the surrounding area.
You are entitled to apply for an occupation order if:
- you own or rent the home and it is, was, or was intended to be shared with a spouse, civil partner, cohabitant, family member, fiancé/financée or your child’s parent;
- you have ‘matrimonial home rights’ (ie, you don’t own or rent the home but you’re married or in a civil partnership with the owner and you’re living in the home);
- your ex-spouse or civil partner owns or rents the home which is, was, or was meant to be your shared matrimonial home;
- the person you cohabit or cohabited with owns or rents the home which is, was, or was meant to be your shared home.
Types of order
Orders that could be made by the courts include:
- letting you stay in the home if the respondent is trying to evict you;
- allowing you back into the home if the respondent has evicted you or is stopping you coming back to the home;
- excluding the respondent from all or part of the home;
- setting rules about how you and the respondent will share the home;
- stipulating that you and the respondent must live in separate parts of the home;
- preventing the respondent from coming within a certain distance of your home;
- asserting your matrimonial rights if you don’t own the property or paid towards its cost.
Service of the application
A copy of your application and witness statement must be served on the respondent. You can:
- get your solicitor to do this if you’re using one;
- do it yourself if it doesn’t put you in danger;
- ask the court to serve the documents.
If you serve the documents you must fill out a statement of service outlining how and when the respondent was served; this form must then be sent to the court.
The court hearing will be held in private, usually attended by just you and the respondent and your legal representatives if you have them.
After hearing the evidence the court will announce its decision. This could include:
- requiring the respondent to make an undertaking to do or refrain from doing something;
- requiring you to provide more information to help the court reach a decision (the court may make an interim order to protect you while you obtain this information);
- issuing one of the orders outlined above outlining what the respondent can and can’t do.
When deciding whether to grant an order the court, under the Family Law Act 1996, will consider:
- the housing needs and housing resources of you and the respondent and of any relevant child;
- your financial resources and that of the respondent;
- the likely effect of any order, or of not granting an order, on the health, safety or well-being of the parties and of any relevant child; and
- the conduct of the parties in relation to each other and otherwise.
If an order is granted it will usually only last for a certain amount of time; if you still feel you need protection after it has expired, you’ll need to apply again.
After the hearing
After the hearing, the order must be served on the respondent in the same way as your application was (see above). You must then send the order and the statement of service to the head of your local police station or the police station named in the court order.
Breach of an order
When granting occupation orders the court may attach a power of arrest, particularly if violence has been used or threatened. This means a police officer may arrest without warrant where they have reasonable cause for suspecting the respondent of being in breach. Breach of an occupation order with a power of arrest attached carries a fine of up to £5000 or up to two years in jail.
Where no power of arrest has been attached, you may apply for a warrant of arrest.