Everyone should be able to feel safe in their own home. If you don’t feel safe in your own home, there is something you can do.
An occupation order is a court injunction and it restricts who can live in and enter your family home. It can even stop an abuser from coming within a certain distance of the property.
If you no longer feel safe living with an abusive partner, or you have left your home because of violence and would like your abuser to leave so that you can return, you may wish to apply for an occupation order.
Who can apply for an occupation order?
You must be related or associated the abuser, for example, if you:
⦁ Are or were ever married or engaged,
⦁ Are or were in a civil partnership or had agreed to form one,
⦁ Are or were living together as a couple (both same sex and opposite sex relationships),
⦁ Live or have lived in the same household (e.g. in a flat share, not as a tenant, lodger or employee),
⦁ Are related, including parents, children, siblings, grandparents etc.,
⦁ Have a child together, or share or have shared parental responsibility of the same child, or
⦁ Are or were in an intimate relationship for a significant period of time
To apply for an occupation order, you’ll need be able to prove that:
⦁ you have the legal right to live in the home (as either the owner or a sole or joint tenant), or
⦁ you are or were living with a partner who is the owner or tenant of the property.
You may still be able to apply for an occupation order if you do not have a legal entitlement to occupy the property. In this instance, the court would carry out a “balance of harm” test to see who would suffer the most harm if the order was not made.
You can apply for an injunction yourself - but you may wish to consult a family law solicitor with extensive experience in domestic abuse cases to ensure you are accurately advised.
Applications and court
If you believe you or your children are at risk because the hearing for the occupation order won’t take place for some time, you can make an application to the court on the same day without your abuser needing to be there.
The court will assess:
⦁ whether you are at risk of harm,
⦁ if they think you may be put off or prevented from applying if you are made to wait for a hearing date, or
⦁ whether your abuser is deliberately avoiding being served notice to appear before the court.
Applications for injunctions under the Family Law Act are held within the Family Court. It takes place a “closed court” in chambers, so only yourself, the abuser, and your solicitors will be allowed in.
During the court hearing, you’ll need to make a sworn statement about the physical and emotional abuse you have suffered as accurately as you can; giving times, dates and physical evidence of incidents wherever possible.
If the injunction is made, a copy must be personally handed to the abuser either by yourself or your solicitor.
What happens if the abuser breaks the occupation order?
Breaching an occupation order is not considered a criminal offence unless a power of arrest has been specifically attached to one or more of the clauses.
Powers of arrest essentially means that a copy of your occupation order would be held by the police station, and that the abuser can be immediately arrested if they break any of the rules set out in it. This is usually only attached if the abuser has used or threatened to use violence toward the applicant.
Breaching an occupation order with a power of arrest can result in the abuser paying fines of up to £5,000 or going to prison for up to two years. Without a power of arrest, you may need to apply for a warrant of arrest and provide evidence of the abuser breaking the occupation order.
If you would like to know more about your legal rights on feeling safe in your home, or if you would like professional guidance and support to make occupation order application, please call us on 03330096275 to speak in confidence with one of the UK’s leading family law firms, Ashmans Solicitors.
You can also use our free online enquiry form or email us at firstname.lastname@example.org. We will get back to you as quickly as possible.
The service we offer to you is as individual as you are. Due to each matter being different and everyone having different needs and requirements, we know how important it is that you have a law firm to represent you that you can trust to act for you as an individual and not just as a case.