Occupation Order: Can It Help Resolve a Difficult Living Situation?

Insights - 09/02/2021

If you find the living arrangements with your spouse or partner unbearable, and are concerned about your wellbeing or the wellbeing of any children living with you, it may be possible to resolve the situation by applying to the court for what is known as an ‘Occupation Order’.

Such orders are regarded as draconian because they result in the interference of the other spouse or partner’s property rights, but you may feel you have no other alternative but to seek the protection of an occupation order.

This short article explains what an occupation order is and what a court will consider before granting one.

What is an Occupation Order?

When suffering from domestic violence or abuse at home, one of the difficulties often faced by the victim is the lack of alternative accommodation should they decide to leave. Alternatively, it may be that the victim is living in a home which belongs to them, but the abusive partner refuses to vacate the property.

An occupation order allows the court to make an order to remove the abusive partner from the home, to prevent their return and/or to allow the victim to return to the home if they have had to leave.

What issues will a Court consider?

For the purposes of this article, it is assumed that the application being considered is made under s33 of the Family Law Act 1996 (FLA 1996), which means you have the right to occupy the property, or have home rights in relation to the property, and the property is/was your home or was intended to be your home with your spouse or partner.

There are two ways in which an occupation order can be made: the balance of harm test in s33(7) FLA 1996 and the discretionary test in 33(6) FLA 1996.

The case of Chalmers v Johns in 1999 established that when deciding to grant an occupation order, the court must first consider the balance of harm test. If the balance of harm test is met, the court must grant the order.

Balance of Harm Test

If It appears to the court that the applicant and any relevant child is likely to suffer significant harm as a result of the behaviour of the respondent if an occupation order is not made, the court must make the order unless:

  1. the respondent or any relevant child is likely to suffer significant harm if the order is made; and
  2. the harm likely to be suffered by the respondent or the 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 the balance of harm test has not been met, the court must then consider the discretionary test.

Discretionary Test

When considering the discretionary test, the court must have regard to all the circumstances, including:

  1. the housing needs and housing resources of each of the parties and of any relevant child;
  2. the financial resources of each of the parties;
  3. the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety, or well-being of the parties and of any relevant child; and
  4. the conduct of the parties in relation to each other and otherwise

The best way to deal with an application for an occupation order is to give the court evidence which will satisfy both the balance of harm test and discretionary test.

Can I apply for an occupation order against someone other than a spouse or partner, and in relation to a property that I am not entitled to occupy?

To apply for an occupation order, you need to be ‘associated’ with the other person. This does not just mean someone with whom you are intimately involved; it can also include a relative who is living with you.

It is also possible to ask the court to grant an occupation order in relation to a property you are not entitled to occupy, under Section 35-38 of the FLA 1996.

Am I likely to succeed in getting an Occupation Order?

The likelihood of an order being granted will depend on the individual circumstances of the case. Occupation orders are considered draconian, and so a court will generally be reluctant to grant one unless absolutely necessary. If you wish to apply for an occupation order, you should first seek legal advice on the merits of any application.

Our specialist team of family lawyers have a wealth of experience in dealing with all aspects of family law, including domestic abuse. We can assist you whether you are applying for an occupation order or resisting one. For more information please contact a member of our team. 

Alternatively, if you are seeking help in relation to an occupation order by someone other than a spouse or partner, our specialist Dispute Resolution department can also assist.

 

Disclaimer:

Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.