Occupation Order is Not Granted
Occupation orders are a type of injunction that allows the courts to decide who should live in a family home. They can also stipulate who is responsible for associated costs such as the mortgage and bills. They can also be used to ensure that you can gain access back into a property where the locks have been changed, or to prevent your ex partner from keeping people out of the home and restricting who can enter the grounds. They can also stipulate that your ex must pay the mortgage and bills.
Anyone who is able to demonstrate that they or their children are at risk of being subjected to violence or threats of violence may be eligible to apply for an occupation orders. This is regardless of whether they own the home themselves (‘entitled’ applicants) or have a financial interest in it (‘non-owning’ cohabitants). This includes former and current partners, relatives, anyone with whom you have had an intimate relationship, or anyone who has lived with you for a significant period of time.
You can make an application for an occupation order on an emergency basis if you are at immediate risk of harm from your abuser. This is a process called ‘applying without notice’ and it involves making your application to the court before your abuser knows that you are applying for an order. You will need to write a statement of evidence which explains the circumstances of your application including any instances of violence or threats of violence, details of how you have been affected, dates and why you are seeking the order.
What Happens If an Occupation Order is Not Granted?
If an occupation order is granted it will usually last for a fixed period of time or until a further order is made to extend it. The length of the initial period will depend on the circumstances and may be up to six months. If your abuser breaches an occupation order then this is a criminal offence. A power of arrest is often included in the order if there has been physical violence or threats of violence. If a power of arrest is not attached to the order then you can apply to the court for a warrant to have your abuser arrested.
The court will always consider the impact of an occupation order on the applicant and any relevant child(ren) before deciding whether or not to grant it. The court will use the balancing test which takes into account the risk that you or your children may suffer significant harm if an occupation order is not granted against the potential benefit of it being granted.
This will be considered in relation to the health and safety of you and any children, housing needs and the respondent’s financial situation. It will also take into account any other options available such as a non-occupancy agreement. It is worth noting that, if an occupation order is breached, it is not a criminal offence unless a power of arrest has been attached to the order. In such a case, the applicant can apply to the courts for a warrant to have the respondent arrested.
