How to obtain an Occupation Order in England and |Wales?
Domestic abuse survivors may be able to stay in their homes without their abuser by getting an occupation order. So how does one obtain an occupation order? You will find everything you need to know about family law in this article by our family law paralegal.
What is an occupation order?
Domestic abuse is grounds for obtaining an occupation order through the family court. The order primarily determines which party is allowed to remain in the property following abuse.
This article is not legal advice.
A Family Law Act 1996 occupation order can be made only by an associated person to the respondent. The respondent of an order is an associated person when they are associated with you via one of the following methods:
Married.
Civil partnership.
Currently cohabiting or cohabiting previously (including same-sex relationships).
Having a common household.
Relative
Individuals who have shared parental responsibilities.
A significant amount of time has passed since you were in an intimate relationship.
It is the same family proceeding in which both of you participate.
Occupation order example:
For ten years, Jane and her husband have been living together. The husband of Jane has become increasingly violent over the past three years, which has caused her to live with her brother.
Her husband doesn't want to live with Jane anymore, but she feels she deserves to live in he
r own home. She applied for a job order in this situation. Her husb
and was prohibited from coming near the property after the order was granted, enforcing her right to remain in occupation of the property.
What is the impact of an occupation order?
As a protective measure, an occupation order may be appropriate for you if you feel unsafe living with your partner, perhaps as the result of violence and have left the home but now wan
t to return and exclude your abuser. The order, therefore, regulates who can live within the family home and what they can do in the area.
Similarly, the NOn-Molestation Orders are granted to protect parties from Domestic Abuse but the Non-Mol order can be sadly missed. To read more click https://www.incourt.co.uk/post/non-molestation-order-misused
While it may not be true for everyone, it is important to note that such orders may not always be beneficial and can even seem counterproductive at times. To merit an intervention order, the court does have to find that the harassment has been severe enough. In order for the abuser to harass the applicant, he or she must have intended to do so.
To qualify under all other scenarios, you must have lived in the property with the respondent as your home, or had intended to, and have the legal right to occupy the property (as either a joint tenant or sole proprietor).
Cohabitees who buy houses and never live in them are included in this category. A balance of harms test will be applied by the court when deciding whether to make the order, determining which party will suffer the most harm if no order is made. A court may make other orders related to an occupation order, such as imposing obligations on the abuser or you (for example, relating to repairs or maintenance of the home, or to rent or mortgage payments).
Similarly, Courts grant Non-Molestation orders about which you can read here https://www.incourt.co.uk/non-molestation-orders
Sadly these Nom Molestation Orders can be misused and the impact can be devastating, an article detailing the impact on the Non Molestation orders is here: https://www.incourt.co.uk/post/impact-of-non-molestation-order-on-a-father-article-by-practising-paralegal
What if the Occupation Order is broken?
The violation of an Occupation Order is not automatically a criminal offense, but with respect to a particular provision, an arrest warrant can be issued. It is likely that the court will attach an arrest warrant if the respondent appears to have used violence or threatened violence toward the applicant. In the case of a breach of an occupation order, a fine of up to $5,000 or two years in prison are the penalties.
If a power of arrest is not attached to the order, the applicant will need to obtain an arrest warrant from the court. It will be up to the applicant to provide evidence and convince the court there are reasonable grounds for believing that the respondent has violated the order.
What are the implications of an occupation order where one spouse or civil partner is the sole owner?
If one spouse is the sole owner and the couple is married or in a civil partnership, occupation orders are available for either spouse. In the case of divorce or dissolution of civil partnership, the funds may go to the sole owner or be devided as the judge deems fit based on multiple factors including the length of the marriage / civil partnership and other factors.
Either the sole owner or the spouse or civil partner who doesn't own the home can seek an occupation order if they want to stay in the house. In practice, neither family member needs to apply unless there is a problem since the sole owner has the right to occupy under property law, while the spouse or civil partner has the right to occupy under home law. Typically, either spouse can ask for an order banning the other spouse from the property or dictating how the property is utilized.
How long does the Occupation Order last fo
r?
Depending on which part of the Act is applied to, the Order may be limited up to a six-month period, or an indefinite one. However, this is unlikely to last longer than 6 months in practice. If you are married or own or rent the home together, you need to figure out who owns what during that time. Keep going and do not stop once the order is obtained. Certain circumstances
may allow for an extension to an Order, but it is not guaranteed.
Can I get legal aid for an occupation order?
Both a request for an Occupation Order and its defence are eligible for legal assistance. It depends on how much disposable income you have snd other factors like assets etc.
It is possible that a small contribution may be required and that you may be eligible for legal aid depending on your financial circumstances. An order can be obtained that grants legal aid immediately, so the application can be submitted to the Court sooner if the situation requires emergency legal aid.
If you need help to defend an Occupation Order or a Defend a Non Molestation Order https://www.incourt.co.uk/post/what-to-do-when-you-have-been-served-with-a-non-molestation-application-made-against-you please do contact us by filling in the form on our website https://www.incourt.co.uk/contact-us
This article is not legal advice and should not be treated as legal advice.
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