What is an Occupation Order and What Evidence Do You Need to Apply?

When domestic abuse strikes, it can feel like everything is out of control. One of the most critical steps a victim of abuse can take is ensuring their safety, which is where an Occupation Order comes into play. If you are at risk of harm from a partner or former partner and are unsure about your rights regarding the family home, this article will break down what an Occupation Order is. Who can apply for one, the evidence required, and the process of obtaining one. Understanding how Occupation Orders work in the UK and knowing the relevant legal protections can make all the difference in ensuring a safer environment for you and your children.

What is an Occupation Order?

An Occupation Order, as defined under the Family Law Act 1996, is a court order that dictates who can or cannot live in a family home. It is designed to help protect victims of domestic abuse by regulating access to a shared home, offering immediate relief from violence, harassment, or intimidation.

While Non-Molestation Orders protect victims from harassment and violence, Occupation Orders specifically focus on controlling who can reside in or enter the family home. The primary goal of an Occupation Order is to ensure the victim’s safety by limiting the abuser’s access to the home.

An Occupation Order can:

• Determine who has the right to stay in the family home.
• Require someone to leave the family home.
• Prohibit someone from entering the home or a specified area around it.
• Allow or restrict entry into the property.

It’s important to note that an Occupation Order does not change the legal ownership or tenancy of the property but helps to ensure physical safety by regulating residence and access.

Who Can Apply for an Occupation Order?

Not everyone can apply for an Occupation Order. The applicant must be considered an “associated person” under the Family Law Act 1996, meaning they must have a relationship with the person they are seeking protection from, such as:

• A spouse, civil partner, or cohabitant.
• A parent of a child who resides in the home.
• An ex-partner, or relative who has lived in the property.

The applicant must either own or rent the property or have what is known as matrimonial home rights, which apply if they live in the home with a spouse or civil partner who is the legal owner. In some cases, even if the applicant is not named on the deed or tenancy agreement, they can still apply if they have lived in the property as their primary home.

The Balance of Harm Test

When considering an application for an Occupation Order, the court will apply the Balance of Harm Test. This test is essential because it seeks to balance the harm that will be caused by granting or refusing the order. The court will assess:

• Will the applicant or their child suffer significant harm if the order is not made?
• Would the harm caused to the respondent or any children if the order is made be as great as, or greater than, the harm to the applicant and their children if the order is not granted?

If the court finds that the applicant or their child is likely to suffer harm without the order, the order will typically be granted unless the respondent proves that the harm to them (or their children) would be more significant.

The Criteria for Applying

To apply for an Occupation Order, the following criteria must be met:

1. The applicant must have a legal or contractual right to occupy the property or have matrimonial home rights if married or in a civil partnership.
2. The property must have been the family home or intended to be the shared home at some point.
3. The parties must be associated, either through marriage, civil partnership, cohabitation, or being relatives.

Once these criteria are confirmed, the court will evaluate the applicant’s situation to determine whether an Occupation Order is necessary for their safety.

Evidence Required to Apply for an Occupation Order

Evidence plays a crucial role in applying for an Occupation Order. Here’s what might be required:

1. Sworn Statement (Affidavit): You will need to provide a detailed sworn statement outlining the abuse you have faced. This statement should include specific details like dates, times, and the nature of the abuse.
2. Medical or Police Reports: Independent reports, such as those from healthcare providers or police, can significantly strengthen your case. These documents can help demonstrate the physical and psychological toll of the abuse.
3. Past Incidents: If possible, provide information about previous incidents of abuse or violence. This can help provide context and a history of the abuser’s behavior.

The more evidence you provide, the stronger your case will be. This may be an emotionally taxing process, but presenting detailed and precise information is key to securing an order.

How to Apply for an Occupation Order

The application process can be done either online or via post, and the court will guide you through each step. Here’s a general outline of the process:

1. Complete the application form (Form FL401) and submit it to the court.
2. Submit supporting evidence, including your sworn statement, police reports, medical records, or any other relevant documents.
3. The court may offer a Notice of Proceedings which will specify when and where your hearing will take place.
4. If necessary, you may be able to request a remote hearing for your safety, such as a video call.
5. The judge will assess the situation and decide whether to issue the order or request additional information. If the order is granted, it can either be temporary or extended depending on the case.

How Long Do Occupation Orders Last?

Occupation Orders are typically made for a fixed period, but they can last up to six months and can be extended as needed. In urgent cases, you can apply for an emergency occupation order that can be issued within 24 hours, providing immediate protection.

Once the order expires, victims may need to reapply for an extension, which can add further stress and uncertainty, but it ensures that victims are not left unprotected.

Common Problems with Occupation Orders

While Occupation Orders are valuable tools for protecting victims of domestic abuse, there are some common issues that applicants may face:

1. The Burden of Proof: Victims must provide sufficient evidence of the abuse. This can be emotionally difficult, especially when proving emotional abuse.
2. Delay in Processing: The process of obtaining an Occupation Order can take several weeks or even months. While emergency orders can be granted quickly, the full process can be time-consuming.
3. Limited Duration: Occupation Orders are generally issued for a limited time, and there is always the uncertainty about what happens when they expire. Extensions may be necessary, adding to the stress and uncertainty.

Expert Insight and Resources

Professionals like family law solicitors recommend keeping as much evidence as possible to back up your case. They also stress the importance of acting swiftly, especially if you or your children are at risk. If you’re unsure whether you qualify for an Occupation Order or need assistance with the application process, it’s wise to consult a solicitor.

• GOV.UK – CourtNav Website: CourtNav Application Process
• Family Law Act 1996: Family Law Act
• UK Government on Occupation Orders: How to Apply

Conclusion

Occupation Orders are powerful legal tools designed to protect victims of domestic abuse by regulating access to the family home. If you are facing domestic abuse, understanding the process and requirements of an Occupation Order can help safeguard your future and ensure your safety. By gathering thorough evidence, meeting the eligibility criteria, and working closely with a solicitor, you can take important steps toward ending the cycle of abuse.

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