A common problem when couples separate is that they often must, at least temporarily, continue to live together. This may be very difficult even in amicable separations, and it may not be straightforward for one party to voluntarily leave the property. Running two households may not affrdable, or neither party may wish to be the one to leave.
For various reasons, many separating couples do co-exist together in the family home until matters are resolved. However, for some, particularly where there are allegations of domestic violence or abuse, this is not an option. In this instance, the Court can step in to regulate the occupation of a home by making an Occupation Order.
What does an Occupation Order do?
The party applying for an Occupation Order (“the Applicant”) may be granted the right to occupy a property, and the Court can also exclude another party (“the Respondent”) from occupying it or coming within a certain distance of it.
An Occupation Order has serious consequences for the Respondent. The Court therefore applies stringent criteria in deciding whether a party is entitled to apply and, if so, whether they should be granted the Order.
Breach of an Occupation Order is a contempt of Court and can be punishable by imprisonment. In certain circumstances, the Court can attach a power of arrest to the Order. This means that, if the Order is breached, the applicant can contact the Police, who can arrest the person breaching the Order without obtaining a warrant.
Who can apply?
An individual’s entitlement to apply for an Order depends on their particular circumstances. Factors include the relationship between the Applicant and Respondent, whether the property has been or was intended as the parties’ home, and whether the Applicant has a right to occupy the property themselves.
When will the Court make an Order?
The Court has various factors to consider. The main criteria in considering an application for an Occupation Order are:-
- The balance of harm test
The Court must make an Order if it appears that, without an Order, the Respondent’s conduct will cause the Applicant or a child significant harm.
- The core criteria test
The court also has a discretionary power to make an Order, considering all the circumstances. The Court’s attention is particularly drawn to the parties’ needs and resources in terms of housing, their financial resources and their conduct. Also considered is the likely effect of either making or not making an Order on the health, safety and wellbeing of the parties and any children.
In urgent cases, it is possible to apply ex parte (ie. without the Respondent being given notice of the hearing). The Court is more cautious in these instances, and is likely to schedule another hearing, which the Respondent would be informed about, to address the issue more fully.