What are Occupation Orders?

An occupation order is a court order which specifically sets out who is able to live in the family home and / or the surrounding area, and who is not.

There were 9,388 domestic violence orders made in England and Wales from April to June 2021. 6% of these were occupation orders, a 9% drop in comparison to 2020. Many factors will contribute to this figure being so low, however one of the biggest factors is that these orders will only be granted in very serious circumstances; the order is ultimately preventing someone who is legally entitled to live in their own home from being there so there is a very high threshold to meet if an applicant is to be successful.

An occupation order can be used as a way of gaining the right to return to the family home where a spouse has decided to change the locks and is denying access. It can also set out details of who is responsible for paying for the mortgage or utility bills. It does not, however, change the financial ownership of the family home or the property involved.

In the Voluntary Right to Buy pilot introduced across the Midlands, the Government set the aim that every home sold would be replaced on one-for-one basis with a newly constructed property. A review of the pilot showed that this was challenging and that replacement homes would be on average smaller, at higher rents and include more homes for shared ownership and fewer for rent. For Registered Providers this may present challenges in terms stock management and ensuring that there is sufficient suitable affordable stock available to meet the changing needs of their customers.

Registered providers also own significant stock acquired as part of Section 106 agreements that are required to remain affordable in perpetuity. In the pilot, those living in properties that could not legally be sold were given the opportunity to ‘port’ their Right to Buy discount a different property. Around 12% of applicants who were offered portability completed on their purchase.

Consideration as to the extension of the Right to Buy to Registered Providers is nothing new, we saw this in 2005, 2015 and again 2019. At that time the Government of the day did not press forward with the proposals, and it remains to be seen whether the proposals will come to pass.

At MSB we’ll be keeping a close eye on any developments and will be on hand to discuss any statutory changes, financial arrangements and to help assess any impact that they may have on your organisation.

Who can apply?

Only ‘associated persons’ can apply for an occupation order. These are people with whom there is or has been a relationship. It does not necessarily need to be an intimate relationship and can include the following:

• A spouse or former spouse or civil partner
• Cohabitants or former cohabitants
• They have lived or live in the same household, otherwise than merely by reason of one of them being an employee, tenant, lodger, boarder
• Relatives
• They have agreed to marry one another
• They have been in an intimate personal relationship with each other which is or was of a significant duration
• They are both persons who are either a parent of the child or has / had parental responsibility
• They are parties to the same family proceedings.

The person making the application must have a right to occupy the property involved, i.e., either be a joint tenant, sole owner, tenant or have matrimonial home rights due to their marriage and occupation of the property as their home.

What do you need to prove to be successful?

For an occupation order to be granted, the ‘balance of harm’ test must be applied. Ultimately, the Judge will need to consider whether the person seeking the occupation order, or any child is likely to suffer significant harm due to the conduct of the other party if the order is not made. The Judge will also need to consider whether making the order will cause greater harm to the other party or any child involved.

The Judge will not just rely upon one factor. They will consider all of the circumstances of the case, including:

• The housing needs of both parties
• The financial resources available to both parties
• The effect on the health, safety or wellbeing of the person making the application and / or any child if the court does not exercise its power
• The conduct of both parties

How long do occupation orders last?

Occupation orders are usually temporary to allow both parties the opportunity to organise where they are going to live and how their assets are going to be divided. The average length of an occupation order is usually six months, but applications can be made for further orders, if necessary.

What if I need an emergency order?

Sometimes orders can be made without the other person being aware of the application, usually if it impacts the applicant’s or a child’s safety. These are known as ‘without notice’ or ‘ex parte’ orders. The court will always arrange a further hearing so both parties can have the opportunity to have their say, but the emergency order will be in place to protect the vulnerable person for that time.

What happens if someone breaches the occupation order?

It is not automatically a criminal offence if someone breaches an occupation order, unless a power of arrest has been attached to it. If a power of arrest is attached, the person who had breached the order could receive a fine or go to prison. If a power of arrest is not attached, an application can be made to the court for a warrant of arrest, but to achieve this, evidence will have to be given to satisfy the court that there are reasonable grounds to believe that the other person has breached the order.

What is my next step?

If you require assistance when applying for an occupation order, or you require further advice, please do not hesitate to contact our Family team, who will be happy to arrange a free initial consultation with you.