Insights
17 Apr 24
Divorce for influencers
Charlotte Kay and Yasmin Kibble
We answer frequently asked questions in relation to occupation orders.
What is an occupation order?
An occupation order is a type of injunction which regulates who can, or cannot, live in the home or certain parts of it. They are serious orders usually made in the context of domestic abuse as they may suspend a party’s right to occupy their own property.
Following an application for an occupation order, a judge will make a decision as to who should or should not reside in the home. This can be the entirety of the property or certain sections of it. For example, it may prohibit someone from entering the bedroom and ensuite bathroom.
In addition, occupation orders can exclude someone from an area around the home (usually around 100 metres).
Who can apply for an occupation order?
In order to apply for an occupation order, you must be associated with the respondent (the person you are applying for the order against). The categories of associated people are as follows:
- You are or have previously been married to each other
- You are or have previously been civil partners of each other
- You are or have previously been cohabitants
- You live or have lived in the same household (excluding if you live together merely by reason of being a tenant, lodger or boarder)
- You are relatives
- You have agreed to marry one another (even if the engagement has been called off)
- You have or have had an intimate personal relationship with one another for a significant duration
- You have entered into a civil partnership agreement
- In relation to a child, you are the parent of the child or have or have had parental responsibility for the child
There are several different sections of the Family Law Act 1996 which an applicant can apply under, depending on their circumstances.
| Section | Summary | Qualifying criteria |
|---|---|---|
| Section 33 | The applicant has a legal or beneficial interest in the property |
|
| Section 35 | A former spouse or civil partner with no existing right to occupy |
|
| Section 36 | A cohabitant or former cohabitant with no existing right to occupy |
|
| Section 37 | Neither spouse nor civil partner is entitled to occupy |
|
| Section 38 | Neither cohabitant nor former cohabitant is entitled to occupy |
|
What will the court consider?
An occupation order is seen as a very draconian measure and therefore the court will need to give careful consideration to a number of factors before making an order.
Balance of harm
The court has a duty to balance the harm caused to the applicant, the respondent and any children if the occupation order was or was not made.
If you or any children are likely to suffer significant harm from the conduct of the respondent if an order is not made, the court must make an order.
Additional considerations
The court should also consider the following:
- The housing needs and resources of each of the parties and any children.
- The financial resources of each party.
- The effect of any order on the health, safety and wellbeing of each of the parties and any children.
- The conduct of each of the parties.
Power of arrest
If the court is satisfied that the respondent has used or threatened violence against you or a child, a power of arrest will be attached to the order.
How long does an occupation order last?
The length of an occupation order will depend upon which section of the Family Law Act the application was made but it is usually granted for six months.
| Section | Length of occupation order |
|---|---|
| Section 33 | For a specified period, until the occurrence of a specific event (for example until decree absolute/final order has been received in relation to your divorce) or until a further order is made. |
| Section 35 | Maximum of six months. This can be renewed more than once. |
| Section 36 | Maximum of six months. This can only be renewed once. |
| Section 37 | Maximum of six months. This can be renewed more than once. |
| Section 38 | Maximum of six months. This can only be renewed once. |
What happens if the occupation order is breached?
If a power of arrest is attached to an occupation order which is then breached, the respondent can be arrested without the need to obtain a warrant.
If an occupation order is breached but there is no power of arrest, you will need to apply for the issue of a warrant for the arrest of the respondent. You will need to satisfy the court that the respondent has breached the order.
The penalty for breaching an occupation order is a fine or imprisonment.
Frequently asked questions
My partner offered to give an undertaking instead. What is an undertaking and should I agree to this?
An undertaking is a solemn promise to the court to do or not do a certain behaviour. A breach of an undertaking is enforceable as contempt of court and is a civil offence.
If a power of arrest should be attached to an order, for example in cases of domestic violence, then undertakings should not be accepted.
I need to apply for an occupation order but I am worried I won’t be able to pay the mortgage if my partner moves out of the property. What should I do?
When granting an occupation order, the court can also impose certain conditions such as making one party responsible for the upkeep of the property or continuing to pay the mortgage and utilities.
The court will consider your and your partner’s ability to pay for these expenses, taking into consideration any costs they would have for alternative accommodation if they needed to leave the property due to an occupation order.
If you are unable to pay for the bills and utilities, this should not prevent you from obtaining an occupation order.
[NOTE: In some limited circumstances, and subject to means testing, legal aid may be available for help with legal fees. Please note that Weightmans LLP does not offer legal aid services.]
Yasmin is a solicitor in our family team, advising clients on all aspects of family law including pre and post-nuptial agreements, divorce and finances, cohabitation and separation agreements, and private children law. She also advises in relation to domestic abuse cases and assists clients with obtaining injunctions such as non-molestation orders and occupation orders.
Rupa is an associate solicitor specialising in financial matters arising from separation and divorce. She has experience in dealing with high net worth cases involving complex and substantial assets. She also advises on pre and post-nuptial agreements, cohabitation disputes, separation agreements and has a keen interest in private law Children Act disputes.
For more information about our family law services, contact our expert family law solicitors.
