Occupation Orders Be Used in Cases
The Family Law Act 1996 allows for occupation orders which are used to determine who lives in a property and who pays the mortgage or rent on it. These are usually used in cases involving children as they aim to maintain stability and continuity for the child and to prevent them being relocated to unfamiliar surroundings. However, they can also be useful for couples who wish to keep their home and can provide an opportunity to resolve disputes over property maintenance.
To qualify for an occupation orders you must satisfy two tests. First you must be classed as an ‘associated person’ under section 62 of the Family Law Act 1996. This includes spouses, civil partners, cohabitants and those who have a ‘close and intimate personal relationship’ of a significant duration. You must also have either a right currently to occupy the property or an entitlement to do so through matrimonial rights.
You must also be able to demonstrate that there is a risk of harm to you or your child(ren) if the associated person continues to occupy the property. The courts will consider the ‘balance of harms’ and a judge will need to be satisfied that the potential damage to you or your child is more than the harm likely to be suffered by the respondent or their child.
This is a very high standard to achieve and you will need to present the strongest of evidence in support of your case. The courts will also weigh up the likelihood of harm being caused to any children involved and will take into account the financial status, housing needs and other assets of both parties.
Can Occupation Orders Be Used in Cases Involving Tenants?
The length of an occupation order can vary depending on the circumstances but is usually for a maximum period of six months at a time. During this period there will be a review of the situation which can lead to an order being extended or revoked.
Breaches of an occupation order are not criminal offences unless the courts have attached a power of arrest. It will be necessary to present firm evidence in order for this to be achieved and a judge will then need to decide whether a breach of the order is serious enough to warrant a warrant being issued for arrest.
Generally, you will need to complete form FL401 and provide a witness statement in support of your application. An application can be made in as little as 24 hours on an emergency basis with no court fee payable.
Often it is necessary for both parties to attend a hearing where the judge will discuss their application and hear arguments before making an order. This can be a stressful and emotional time for both parties especially if there are children involved. Our specialist team here at Sears Tooth can guide you through the process and ensure that your case is put forward in a way which is most effective. Occupation orders have a wide range of implications for each party and can determine their contribution towards utility bills, rent and mortgages as well as setting out specific dates when one party is able to access the house.