< Go Back What is an Occupation Order and Who Can Apply? Posted: Mar 30, 2022An occupation order is a document created in a court of law to restrict or declare the rights that someone has to occupy the matrimonial home. This is normally a short-term order to settle occupation of a home before the sale. An occupation order could be granted using various sections of the Family Law Act 1996.
The occupation order can be used to enforce your right to remain in a property, gain permission to enter a property or restrict others from the property. It can also serve as a notice order to ask other occupants to leave the property.
Who Can Apply For An Occupation Order? Occupation orders are often carried out in the event of separation or abuse, though there may be many other reasons.
To be eligible to apply for an occupation order, you must:
· Have a legal or contractual right to remain in the property. This could be because you are the owner, or partial owner of the property, or if you married the owner of the property, meaning you have matrimonial rights to stay there.
· Have been living in the property or have been intending to live in the property prior to the order being carried out.
· Be ‘associated’ to the person they intend to keep out of the property, either by marriage, through another relationship or because you are related to them.
To decide whether an occupation order request is valid, the courts will look at the ‘balance of harm’ test. If the court determines that the harm done to the remaining occupant or any children involved will be greater if the order doesn’t proceed, then they will allow the order.
Alternatively, in certain situations where children or adults who require care are involved, the court may determine that an occupational order for removal of one occupant may cause more harm in the short-term and it is at their discretion to deny this application.
How To Apply For An Occupation Order? To apply for an occupation order, you must issue a FL401 form to the courts for review. There’s currently no fee set against lodging an application. The court will review the financial situation and stability of both parties before making a decision. Even if an occupation order is granted, the court may impose certain criteria that need to be adhered to as part of the success order.
How Long Does An Occupation Order Last? Most occupational orders are made for a maximum of 6 months at a time. However, they can be renewed at this time if necessary.
They can also last until a specific event or for an exact period of time leading up to a change in circumstances. The order could be in place until the sale of the home, until a divorce is finalised, or until alternative arrangements can be made for the housing of a child.
During the application process, the courts will review the financial stability, assets and safety of both occupants before deciding on a course of action and term length.
Occupational Order Terms The courts can impose certain terms with a successful occupational order to ensure the minimum harm done to either party. These could include the obligation for the remaining occupant to pay for the property or for the remaining occupant to make repairs to the property in the other’s absence to assist in a sale.
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