What is an Occupation Order?

How to Apply for an Occupation Order

To apply for an Occupation Order, you must be able to prove that you are associated with the respondent. This effectively means that you can only apply for an Occupation Order if you meet one of the following criteria:

• You are, were, or intend to be married to the respondent
• You are, were,  in a civil partners to the respondent
• You and the respondent are in a relationship and live together as though you’re married to each other
• You and the respondent live or have lived in the same household in a familial (family) relationship
• You and the respondent have or have had an intimate personal relationship with each other which is or was of significant duration
• You are both parents of or have parental responsibility for a child
• You and the respondent are relatives with one of the following relationships:
  • Parent or stepparent
  • Child or stepchild
  • Grandparent or grandchild
  • Spouse or former spouse
  • Civil partner or former civil partner.
  • Sibling
  • Uncle or aunt
  • Niece or nephew
  • First cousin

In addition, you must be able to show that you are entitled to live the property. The first element to this is that you must be able to show that both you and the respondent either continue to or have at some point occupied the property as your home which can be done by using proof bill payments that are labelled to that address.

Showing your entitlement to live in the property is complicated, as there are several ways in which you can demonstrate to the Court that you have occupation rights, which we can certainly help you with at Simpson Millar.

Forming this requirement will depend on the individual facts of the case, although there are cases where somebody has clear occupation rights. For instance, they may be the registered owner, or the property is or was their matrimonial home or you are a tenant.

If you meet the criteria, you can apply for an Occupation Order by completing an FL401 application. You will also need to complete a supporting witness statement and send these forms to the court. There are no court fees when applying for an Occupation Order. You can download the Order forms and guidance from gov.uk.

When Can I Apply for an Occupation Order?

If you or your child is at significant risk of harm, you should seek help as soon as you can. In this position, you can apply for an Occupation Order on an emergency basis although this is unusual because if you were at risk of harm you could have applied for a non-molestation order at the same time. This means that you do not have to notify the Respondent—the person against whom you are applying for an order—if there is risk to you or your child. What’s more, you can also apply without notice to the Respondent if there is a risk that they could pressure you into withdrawing your application.

If there is no immediate risk of harm, then you would apply for the Occupation Order on notice. This means that the Respondent would receive a copy of your application from the Court. The Court would then arrange a hearing for you both to attend.

What Legal Fees are Included in Applying for an Occupation Order?

There  is no court fee for submitting an Occupation Order application form to Court.

When it comes to building your case, you may wish to instruct a solicitor to help you. There is legal aid available to assist with Occupation Orders, but it is means and merits tested so your finances and the merits of your application will be assessed.

Legal aid is nearly always available for Occupation Order applications no matter how much you earn, but those with a higher income may need to pay a financial contribution towards legal fees. To test the merits of your case, the Legal Aid Agency will consider how likely it is that your application will be successful. If you can prove that your case has merit, the Agency will grant you legal aid unless the contribution you are asked to pay exceeds the costs which your solicitor could expect to incur.

For more information on applying for financial aid, please get in touch with Simpson Millar on 0800 260 5010.

How is the Decision for an Occupation Order Made?

Deciding who can live in a property is not easy for the Court. They have a duty to make an Order if it appears that the applicant or any child that they have Parental Responsibility for is likely to suffer significant harm from the respondent if an Occupation Order isn’t granted.

When making the decision whether to grant an Occupation Order, the Court applies what is called the ‘Balance of Harm’ Test.

Where there isn’t a risk of significant harm, the Court will consider all the circumstances with particular regard to:

• The housing needs and housing resources of each of the persons and of any relevant child
• The financial resources of each of the persons
• The likely effect of any Order, or of any decision by the Court not to exercise its powers to make an Order on the health, safety or wellbeing of the persons and of any relevant child
• The conduct of the persons in relation to each other and otherwise.

What Happens at an Occupation Order Hearing?

In most cases, only you and any legal representatives will be present as an Occupation Order hearing is held in private. If you provided notice of your Order application to the respondent, they may also be present.

At the hearing, the Court will consider your evidence—that is your application form, supporting statement, and any other materials you have submitted.

After this consideration, the Court will make a decision to either:

• Request the respondent to provide an undertaking to do or not do something
• Request you to provide more information in support of your Occupation Order
• Issue the order

If the judge asks you to provide more information in your case for an Occupation Order, an interim Order may be issued in the meantime while you obtain all the information.

If an Occupation Order is issued, you will receive a copy from the Court. The Court may ask you to serve the documents on the respondent, or it may agree to serve the Order on the respondent themselves.

How Can I Help My Case for an Occupation Order?

In order to win an Occupation Order, you need to ensure your application and witness statement is accurate. It is very important that you include all information and evidence in your statement so the Court can understand your situation.

Applying for an Occupation Order requires extra care, and so we strongly advise that you take legal advice before making an application.

Here at Simpson Millar, we can provide you with advice and guidance as you navigate this difficult situation. Our team of Family Solicitors will handle your case with the highest level of care, imparting specialist knowledge that will help your voice be heard in Court.

What is the Next Step in Applying for an Occupation Order?

If you wish to apply for an Occupation Order, our team of Family Law Lawyers are on hand to support you. We can check that you meet the criteria for being awarded an Order and guide you through the application process.

If your mind is racing with questions about the Order, allow our specialist solicitors to answer and put your mind at rest. Our experienced team of lawyers have helped many people with cases like yours. With a strong track record of success, we can provide you with options on how best to deal with your legal matter.

When you’re ready to talk, we’re here to listen and advise. Get in touch with Simpson Millar today.