What is an Occupation Order?

Under the Family Law Act 1996, an Occupation Order is a legal document issued by the courts in England and Wales that regulates, declares or restrict who has the right to occupy the family home. Occupation Orders are typically used in cases of domestic abuse to prevent one party from accessing the family home to ensure the safety of the occupants. 

An occupation order can be used to: 

• Say who has the right to remain in the family home  
• Require a person to leave the family home
• Require permission to enter and stay in the family home 
• Restrict the rights of a spouse to live in the family home
• Prevent a person from entering a defined area in which the family home is included

It is important to bear in mind that if an Occupation Order is granted, it does not change the ownership of the property. The court can also issue an order setting out who should pay the mortgage or rent, repair and cover the maintenance of the property.  

Remember, the court will only issue an Occupation Order if it is absolutely necessary. This is because it prevents a person from living in a property which they have the legal right to occupy. To ensure that your application for an Occupation Order is successful and to ensure your safety and that of your children, please contact one of our kind and knowledgeable family lawyers by using our contact form.  

An Occupation Order is not the same as a Non-Molestation Order. An Occupation Order controls who can access the family home, whereas a Non-Molestation Order prevents an abuser from threatening or using any form of physical violence or intimidating, harassing or communicating with a victim of domestic abuse. 

Who can apply for an occupation order? 

Not everyone who is a victim of domestic abuse can apply for an Occupation Order. To apply for an Occupation Order as a victim of domestic abuse, you must be what is called an ‘associated person’. You are an associated person if: 

• You own or rent a home that is or was to be shared with your husband or wife, civil partner, cohabitant, family member, engaged partner, or the parent of your child 
• You have matrimonial home rights, i.e. if you do not own or rent your home but you are married or in a civil partnership with the owner and you live in the property 
• Your previous spouse is the owner or tenant of the home, and it is or was intended to be your shared matrimonial home 
• The person you live or lived with is the owner or tenant of the home, and it is or was intended to be your shared matrimonial home 

If you are unsure if you can apply for an Occupation Order, speak to a family law solicitor who will be able to advise you based on your individual circumstances. 

Balance of harm test 

When deciding whether to grant an Occupation Order, the courts will apply the balance of harm test. The balance of harm test requires the court to consider whether the person applying for the Occupation Order, or their child, is likely to suffer significant harm by the respondent if the order is not made. However, the court may not issue an Occupation Order if they have reason to believe that: 

• The person being accused of abuse (the respondent) or any relevant child is likely to suffer significant harm if the order is made. 
• The harm likely to be suffered by the respondent or the child is as great as, or greater than, the harm that is likely to be suffered by the applicant or their child if the Occupation Order is not granted.  

What evidence do I need for an occupation order? 

To prove that you have grounds for an Occupation Order, you must be able to show that you are being subjected to emotional abuse. Emotional abuse may be proven by providing the following types of evidence to the court: 

• An affidavit or sworn statement setting out the details of the abuse you and/or your child have suffered and the impact of this abuse physically and psychologically. Providing a sworn statement of this nature may be extremely difficult and emotionally traumatic, but it is necessary to create a strong picture of what has happened to you and your children. 
• Medical reports outlining any physical and psychological injuries received. 
• Police reports detailing any incidents of domestic abuse. 

How to apply for an occupation order 

There are several steps involved in applying for an Occupation Order, as follows: 

To apply online 

1. Go to the CourtNav website and complete the initial questionnaire online.¹ 

2. Create a CourtNav account. 

3. Complete the application for an Occupation Order. This involves providing a written statement setting out what has happened to you and the name and details of the person who has abused you or your child.  

To apply by email or post: 

• Download and complete the application form.² 
• Draft a supporting statement setting out what happened to you. 
• If you want to keep your address and phone number private, you can use form C8.³ 
• Submit your application by email, post, or hand in your documents to a local court that deals with cases of domestic abuse.  

Once you have submitted your application for an Occupation Order, you will be sent a Notice of Proceedings by the court. This will explain where and when your private Occupation Order hearing will take place. At this stage, a sealed copy of the application and your witness statement must be served to the person named in the application. You can ask your family law solicitor or the court to do this for you. 

If you are concerned for your welfare, then you may be able to have your hearing over a video or phone call to ensure your safety. Depending on the situation, you can also ask not to speak to or be questioned by the other party at your court hearing. 

At the end of the hearing, the judge will either issue the Occupation Order, ask you to provide more information, or ask the person named in the application to make an ‘undertaking’ (i.e. a promise that they will do or not do something).  

How long does it take to get an occupation order? 

It can take several weeks or even months to get an Occupation Order. The amount of time it takes to get an Occupation Order will depend on when the court can arrange a hearing for your matter and whether the judge has enough information to make a decision. If your matter is particularly urgent, you can apply for and receive an emergency Occupation Order within 24 hours.  

Problems with occupation orders 

While Occupation Orders are extremely beneficial, it is important to understand that there are some common problems associated with this type of court order. Firstly, when applying for an Occupation Order, the burden of proof is on the victim of domestic violence. Having to recall abuse can be extremely traumatic and upsetting for the victim. In addition, proving emotional abuse can be difficult to prove. 

Secondly, it can take several months to apply for and receive an Occupation Order. This can result in significant worry and stress while the matter is being decided.  

Finally, Occupation Orders only last for a limited time (usually 6 months). Because of this, victims of domestic abuse may be concerned about what will happen when the order expires, and they may need to go through the process of having the order extended, causing further stress and uncertainty.  

References 

¹ GOV.UK: CourtNav website 

² GOV.UK: Application form 

³ GOV.UK: Form C8