The impact of domestic abuse ripples far beyond the physical wounds which may be visible. The long term consequences of abuse are manyfold, and are felt across a spectrum of emotional, mental, sexual, social and economic challenges.
When the abuser and victim live under the same roof, the issue of housing also becomes a consideration. If the victim feels unsafe continuing to cohabitate but the abuser refuses to leave voluntarily, legal intervention in the form of an Occupation Order could be necessary. This is a type of injunction issued by the family court to determine who has the right to stay in the shared property.
What is an Occupation Order and when is it used in cases of domestic abuse
In normal circumstances, joint owners or tenants each share an equal right to reside in the property. In cases involving domestic abuse, the courts may step in and make an Occupation Order which sets out who is entitled to live in the home following the incident of abuse.
If the abuser refuses to leave and the victim also wishes to remain in the home but not with their abuser, an Occupation Order can legally compel that person to vacate the property.
Occupation Orders can also be used to protect victims where the victim isn’t a joint owner or tenant but does cohabitate with the owner or tenant in a property intended to be the joint residence.
The Occupation Order doesn’t just set out who has the legal right to enter the home it can also specify whether the abuser can enter the area surrounding the property. This can give the victim peace of mind that they won’t lose their home following an instance of domestic abuse. It additionally provides protection from the abuser by defining if that person can access the property or areas around the home and in what circumstances.
What legal protections does an Occupation Order provide to abuse victims?
An Occupation Order is intended to be a temporary measure so will typically last for a period of around six months. This time frame should allow victims of abuse time and space to make alternative living arrangements.
An occupation order gives a range of protections to domestic abuse victims including:
- The legal right to stay in their home
- The ability to require approval for the abuser to visit the property
- A legal order to prevent the abuser from remaining in the property with the victim
- A legal order preventing the abuser from visiting the area around the home
Anyone breaching the Occupation Order can be held in contempt of court. In more serious cases, the family court may choose to attach an arrest order to the Occupation Order. In that case, any breach of the order can result in a fine or a prison sentence being handed down.
If an arrest order hasn’t been made, the victim can report the breach and go back to court to apply for an arrest warrant to be issued. Evidence must be provided which clearly shows the order has been breached to support that request.
How do you apply for an Occupation Order and what evidence is required?
It’s important to note that a victim of domestic abuse doesn’t need to be the owner or joint tenant to apply for an Occupation Order. To apply, the victim must:
- Jointly own or rent the home with the abuser
- Be married or in a civil partnership with the person who owns the property
- Were formerly married or in a civil partnership with the person who owns or rents the home, and the home was designated as the family or matrimonial home
- Live with the person who owns or rents the home, and that property was intended to be shared by both parties
If any of those criteria or met, form FL401 can be completed. The application can be made online, by email, by post or in person. A family solicitor can help with the application and review the form before it’s submitted.
A supporting statement is required alongside the completed form. This statement should outline what happened and be followed by a statement of truth which confirms the facts outlined in the application are true.
Once the application has been submitted, a Notice of Proceedings will be issued which confirm when the hearing will take place. The application will then be served on the person named in the application.
A court hearing will be held, and a decision made by the court. When deciding whether to issue the order, the judge will consider the risk of significant harm to the victim. Other factors, such as each person’s needs and resources, will also be considered.
The court may require an undertaking to be made by the abuser to do or not do something. An interim order may be served while additional information is gathered. If the Occupation Order is issued, it will outline what the other party can and can’t do. The order will be given for a specific duration – usually, this is six months.
How do Occupation Orders interact with other legal measures like non-molestation orders?
Victims of domestic abuse can apply for more than one kind of order to obtain legal protection from their abuser. A Non-Molestation Order can be applied for alongside an Occupation Order to provide a higher level of protection from that individual.
Where immediate protection is required from the abuser, the victim can ask for an emergency order to be made. This can be requested, and a hearing held, without notifying the abuser. That emergency order will then remain in place until the applications for the other orders are heard.
Applying for an Occupation Order can be confusing. It can also feel overwhelming for victims of abuse at a traumatic and worrying time. Legal Aid can help to cover all or some of the costs of retaining a family solicitor to provide legal guidance and representation when applying for the order.
If you’re considering applying for an Occupation Order, contact us to find out how we can help. All calls are confidential.
