Going through a divorce or separation can be a very difficult and emotional time for all parties, and one area that can cause great contention is establishing just who has the right to live in – and even access – the matrimonial home.
Getting this clarified as early in proceedings as possible can be beneficial for all parties, so that everyone is clear on their rights.
This is particularly important for the victims of domestic abuse, who need to reassurance that they are able to remain in their family home, free from the anxiety that the perpetrator can enter at any time.
AFG LAW are a leading law firm which specialises in Family matters, with offices in Bolton, Bury and Stockport, have vast experience in supporting victims of domestic abuse in obtaining an Occupation Order, to help them feel secure and protected in their own home. Bronte Ashworth, paralegal in the Family team, explains how this can be done:
What is an Occupation Order?
An Occupation Order is a court order that gives an individual a right to reside in the family home, and potentially can exclude the other party from having access to the home. This order is typically used by victims of domestic abuse who wish to be able to live in their home without the other party, and is often made alongside a Non-Molestation Order.
Who can you make an occupation order against?
In order to apply for an occupation order, both parties must be ‘associated’. Section 62-63 of the Family Law Act defines an associated person as;
- Someone who you are or have been married to.
- Someone who you are or have been in a civil partnership with.
- Someone who you have Cohabited with whilst in a relationship.
- Someone who you have lived in the same house and aren’t a tenant, lodger, boarder or one of you is the other person’s employee.
- A relative/family member.
- Someone who you have or have had an agreement of marriage with.
- Someone who you have or have had an intimate personal relationship with each other which is or was of significant duration.
- Someone who you have entered into a civil partnership agreement with.
- You have a child together or share, or have shared, parental responsibility for a child.
- You are parties to family proceedings with someone.
Who can apply?
To apply for this order, you must also be a victim of domestic violence, and have rights to the home. This can be in the form of;
- Owning or renting the home and it is, was, or was intended to be shared with a husband or wife, civil partner, cohabitant, family member, person you’re engaged to or parent of your child.
- Being married or in a civil partnership with the owner of the home, and also living in the home yourself.
- Your former wife, husband or civil partner owning or renting the home that is or was intended to be your shared matrimonial home.
- The person you cohabit/cohabited with being the owner or tenant of the home and the home is or was intended to be your shared home.
What can the order protect against?
An occupation order is not just used to prevent the respondent from living in the family home – they can also be used to remain in the property, exclude the respondent from a defined area around the property, require permission to enter the property and prohibit access to certain parts of the property. The order can also make respondent contribute financially towards rent or mortgage payments.
What will the court consider?
When deciding who shall be able to live in the family home and who is excluded from living in it the court will apply the ‘balance of harm test’. The court must balance the harm which will be suffered by the applicant and any children if the order is not made against the harm that will be suffered by the respondent if the order is made. If the applicant (or children involved) will suffer significant harm due to the order not being made, then the order will be made unless the harm to the respondent Is greater. The court also has the discretion to make the order if they deem it necessary, even if this test is not satisfied.
When deciding if the order should be granted the court will consider; the financial resources of the parties, the conduct of the parties, the housing needs of the parties, and the effect of the order.
Applying for an Occupation Order
If there is an immediate risk of significant harm then you can apply for an order to be made ‘without notice’. This means that the respondent would not be made aware of the proceedings until the order was granted.
Alternatively, you can make an application ‘with notice’ and the respondent will be informed of the proceedings before the hearing takes place.
What will happen once the order is granted?
Before the order can come into effect it must be served on the respondent, as the respondent cannot adhere to an order they are not aware of. Once the order has been served, it will be in effect for up to 6 months. An occupation order is not made to be a long term solution, however in depending on the circumstances the order may be extended on one of more occasion of up to 6 months.
The court can attach a power of arrest onto the order, if this is then breached the penalty would be imprisonment of up to 2 years or a fine of up to £5000. This is usually attached in cases where the respondent has or has threated to use violence towards the applicant. If there is not a power of arrest attached to the order, the applicant will have to apply to the court for a warrant of arrest.
Please contact us on familysolicitor@afglaw.co.uk or 01204 377600 for further information or assistance.
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