What is an occupation order for a property?
- An occupation order is applied through the Family Law courts in cases where you're a victim of domestic abuse.
- It can be for the occupation of a rental property or a home you have a beneficial interest in, including a matrimonial home.
- An order is only granted in extreme cases that meet tests supported by detailed evidence.
- Breaching the order isn't a criminal offence, although some orders may include the power of arrest.
- The order could include a financial order to pay occupational rent or mortgage costs.
- A court may order a Non-Molestation Order to stop future pestering, intimidation or harassment.
- The Family Law Act 1996, Part IV, sets out the law for this order.
- Always report domestic abuse - you will need to prove what is going on.
An occupation order (OO) is applied through the Family Law courts in cases where you're a victim of domestic abuse. The order confirms who can live in the family home and can even restrict entry to the surrounding area.
You can obtain an emergency occupation order within 24 hours and should do so with the help of a qualified solicitor, although you can make an application online without one. For the rest of this article, the Applicant is the person at risk applying for the order, and the Respondent is the party causing the risk to the Applicant or the children.
Who can apply for an occupation order?
- You own or rent the home, and it is, was, or was intended to be shared with a husband or wife, civil partner, cohabitant, family member, person you’re engaged to or parent of your child;
- You're not named on the legal title or the rental lease, but you’re married or in a civil partnership with the owner, and you’re living in the home (known as ‘matrimonial home rights’);
- Your former husband, wife or civil partner is the owner or tenant, and the home is, was, or was intended to be your shared matrimonial home; OR
- You cohabit or cohabited with a homeowner or rental tenant, and the home is, was, or was intended to be your shared home.
You can't obtain an OO on someone's house if you aren't in a relationship/cohabiting, have never resided in the property, and had never intended to live there. For example, you can't get an order on your friend's house unless the property is, was, or was intended to be your shared home.
What is included in an occupation order?
An OO doesn't just state who should be included or excluded from living at your home. It can:
- enforce the applicant’s entitlement to remain in occupation against the other person (“the respondent”);
- require the respondent to permit the applicant to enter and remain in the dwelling-house or part of the dwelling-house;
- regulate the occupation of the dwelling-house by either or both parties;
If the respondent is entitled to live in the property (see above), then the order could:
- prohibit, suspend or restrict the exercise by them of this right to occupy the dwelling-house;
- if the respondent has matrimonial home rights to the dwelling-house and the applicant is the other spouse, restrict or terminate those rights;
- require the respondent to leave the dwelling-house or part of the dwelling-house;
- exclude the respondent from a defined area in which the dwelling-house is included.
What are the Occupation Order Tests?
- 1
The Balance of Harm Test
The first port of call in any decision is the actual or potential risk of harm to the applicant, respondent or any children, both to include or exclude from the property. Section 33 (7) states:
- the respondent or any relevant child is likely to suffer significant harm if the order is made; and
- the harm likely to be suffered by the respondent or child in that event is as great as, or greater than, the harm attributable to the conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made.
This means an order will be awarded where the Applicant or any children living in the property could suffer significant harm, now or in the future, caused by the respondent.
- 2
The Test Criteria
Once the risk of harm without is found to be greater, on balance, than with one, the next phase is assessed based on the following criteria under Section 33 (6):
In deciding whether to exercise its powers under subsection (3) and (if so) in what manner, the court shall have regard to all the circumstances, including—
- the housing needs and housing resources of each of the parties and any relevant child;
- the financial resources of each of the parties;
- 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
- the conduct of the parties with each other and otherwise.
The court should consider the impact on the Applicant and Respondent if an order is made. Can the Respondent afford to live somewhere else? Do the children need the Respondent at home because the Applicant goes to work? Is the application because of the break-up, or does the Respondent's conduct fall under the test criteria?
When won't an occupation order be granted?
These orders have been abused in the past to get an ex-partner out of the property just because of the breakdown of a relationship; however, this alone will not merit an order, and it will not be granted if:
- There is no risk to the applicant or children remaining living in the property
- Neither the applicant nor respondent can afford to move out.
- It would cause a risk for the respondent to move out.
These aren't hard and fast and the Judge will decide, based on the evidence provided, what is best for the Applicant, Respondent and children.
Occupation order...who pays the mortgage?
When a person normally responsible for paying the mortgage is forced to leave the home due to an occupation order, they will still be liable for paying their share of the mortgage. They may be entitled to receive Occupational Rent on their share of the property from the occupying party (the person who gets to stay in the home). Often, this rent is then used to pay the mortgage liability.
Under Occupation Orders - Section 40 of the Family Law Act 1996 it is stated:
(1)The court may on, or at any time after, making an occupation order under section 33, 35 or 36—
(a) impose on either party obligations as to—
(i) the repair and maintenance of the dwelling-house; or
(ii) the discharge of rent, mortgage payments or other outgoings affecting the dwelling-house;
Who pays the mortgage will be set out within the order; however, the liability for the mortgage repayment to the mortgage lender remains a joint and several liability until it is repaid in full. If the joint owner fails to pay their share of the mortgage (even because they have not received their occupational rent from the occupying owner), the mortgage lender could note the missed repayment on your credit file. Read more - What happens to a joint mortgage when you separate?
If an owner fails to pay mortgage payments or occupational rent after being ordered to by the courts, they would be in contempt of court. This can have varying consequences, including making them pay for damages, making them pay fines, or even sending them to jail.
How long does it take to get an Occupation Order?
You can get an Occupation order within 24 hours; however, obtaining the evidence and completing the forms to apply to the Family Court will often take longer. This is why it is best to instruct a solicitor to make the application for you because they know what the court needs to receive to make the award.
An award is only given in extreme cases because it temporarily revokes someone's legal right to live in a property.
How much does it cost to get an Occupation Order?
Description | Cost Range (£) |
Solicitor's Legal Fee - Application to court | £2,000 - £3,000 INC VAT |
Counsel Fee | £1,000 to £5,000 INC VAT |
Court Fee | £0 |
Who pays legal fees?
- Application to court legal fees. You can avoid these costs by making your own application online. If you instruct a solicitor, you'll pay your own solicitor's legal fees.
- Court fees. There are no court fees.
- Counsel Fees. Most solicitors suggest getting counsel to represent you to the Judge at the hearing.
You don't have to suffer in silence. Report any form of domestic abuse, as soon as it is safe to do so. If you need support escaping an abusive situation before you can report it, contact: Women's Aid, or Refuge for Women, Respect advice line for men, or Galop for LGBT+.
If it is not safe for you or for your children to stay in the house, you can leave a shared home temporarily and apply for an occupation order.
Domestic abuse or violence is a crime and should be reported to the police - other organisations can offer you help and support. Find out more at Gov.UK.
Caragh is an excellent writer and copy editor of books, news articles and editorials. She has written extensively for SAM for a variety of conveyancing, survey, property law and mortgage-related articles.
