What is it?
This order allows the court to decide who or who should not live within the family home or any part of it. It does this by considering the housing needs and resources of each party and subsequent children.
How does it work?
It works by setting rules and imposing restrictions upon who has the right to reside in the property regardless of ownership/tenancy. While breaching the terms of this order is not a direct criminal offense, it is contempt of court and will be dealt with by the family court. Powers of arrest can be attached to this order in certain circumstances such as domestic abuse; this means that the perpetrator can be arrested if they breach any of its terms. It is usually a temporary measure (around 6 months) that allows time for other arrangements to be made or until divorce proceedings are dealt with.
Here are some of the terms that the order may contain:
Enforce the right for one party to remain or return to the home
Enforce and instruct one party to leave the home
Decide who must pay the rent/mortgage and repair/maintain the home
Decide who should live where within the home if you are able to have separate parts
To exclude one party from entering a certain distance around the property
It is important to note that the terms of these orders and how they are worded are extremely important; a slight miswording could result in a failure to secure a conviction of contempt of court after a breach of these terms.
Who can apply?
You can apply for this order yourself, providing you are or have been cohabiting with a partner/family member.
There is no fee to apply for this order.
How do I apply?
You can apply for this order by completing a FL401 form and submitting it to your local family court (this is often used in conjunction with a non-molestation order application).
Please note you can also fill out a supplementary C8 form if you wish to keep your details confidential from the perpetrator.
Can it be made in an emergency?
Yes, this order can be issued without notice (ex-parte in court terms), meaning they can be applied for in an emergency without the perpetrator knowing. This is particularly helpful if you are concerned regarding repercussions; they are often done on the same day as the application or within 48 hours. Alternatively, a with notice application would be where the perpetrator is informed of the proceedings before the first hearing.
What evidence will I need?
There are many things you can use as evidence for an occupation order, and you will also be asked to prepare a written statement with your own testimony detailing why you’d like the order and some history for context. Please note that having physical evidence isn’t always needed; it can just be helpful. Things you may wish to include:
- Photographs of injuries/damage to property
- Call logs or any evidence of harassing communication
- Case numbers of any police reports/incidents/convictions
- Letters of support from case workers/organizations/professionals/GPs/therapists/teachers that are supporting you
What happens after the application?
You will be required to attend court. If it is an emergency without notice application, the order will be temporarily issued, and papers physically served to the perpetrator. If it is unsafe for you or someone you know to serve the documents, you can request that the court does this for you. Use the D89 form. If you have legal representation, your solicitor will organize a process server for you.
Please note, the order is not in place until the paperwork has been officially served.
You will then be required to come back for a further hearing, usually within 2 weeks, and the perpetrator will be invited to attend the hearing. If it is a with notice application, this will be your first hearing. The court will examine the statements from both parties and will ask the perpetrator if they agree to the order or not. If they agree, this can be granted immediately. If they do not agree, then you will be required to attend a contested hearing. The order can be granted temporarily until such hearing.
What is a contested hearing?
Well, this order effectively goes against a person's human rights, and so they must legally be given the opportunity to prevent it from happening. During a contested hearing, both yourself and the perpetrator will be required to give evidence and ask the other party questions based on previous statements. (Please note, only legal representatives are allowed to physically ask the questions. Direct cross-examination is forbidden when domestic abuse is present). So, basically, someone else will ask the questions for you and them.
Will I have to see them?
Not necessarily, you can ask for special measures which includes separate entrances to the court, screens within the courtroom, or you could be granted permission to attend via video link.