Domestic abuse is a widespread social problem that can have devastating effects on victims and their families. Since the definition of domestic abuse now encompasses not only physical violence but also emotional, psychological, financial, and controlling behaviours, it is vital that the legal system provides a range of protective measures. In England and Wales, one such legal remedy is the occupation order. Although less well-known to the general public than other forms of legal protection, such as non-molestation orders, occupation orders play a crucial role in ensuring the safety and security of survivors of abuse, often determining who can live in, visit, or come near the family home.
Understanding how these orders work, who can apply for them, what considerations the court will take into account, and the likely outcomes, is essential for anyone supporting survivors of domestic abuse, whether as legal professionals, advocates, or concerned members of society. This article explores the legal framework surrounding occupation orders in the context of England and Wales, unpacks the relevant legislation, and examines how courts strive to balance the rights of both parties while prioritising safety and welfare.
Legal Basis and Purpose
Occupation orders are civil court injunctions that fall under the Family Law Act 1996. They regulate who can live in the family home or enter the surrounding area. These orders are particularly pertinent when parties cannot agree on who should remain in the home following the breakdown of a relationship, especially where allegations of domestic abuse have been raised. Unlike eviction orders granted by landlords or housing authorities, occupation orders apply between connected individuals – those who have a familial, intimate, or legal relationship.
The core aim of an occupation order is to protect a person from continuing danger while ensuring their housing situation is made safe. In extreme cases, an occupation order can exclude a perpetrator from a property they own or have a right to occupy. Ultimately, the orders offer a temporary intervention, often acting as a short-term solution whilst longer-term arrangements such as divorce proceedings, property settlements, or tenancy changes are dealt with.
Who Can Apply for an Occupation Order?
Not everyone can apply for an occupation order. The criteria for eligibility are laid out in the Family Law Act 1996, which defines a set of relationships qualifying someone as an “associated person.” These relationships include:
– Married or formerly married couples
– Civil partners or former civil partners
– Cohabitants or those who used to cohabit
– Those who are or were engaged to be married or to enter a civil partnership
– People who have or have had an intimate personal relationship of significant duration
– Parents of the same child
– Relatives (e.g. siblings, parents, grandparents)
– People living in the same household, excluding those working as employees
Furthermore, the applicant must have a legal right to occupy the property or be able to establish occupancy rights through their connection to the respondent. This might arise via ownership, tenancy, or matrimonial home rights. In some cases, even if a person has no legal entitlement to the property, the court has discretion to grant temporary occupancy through the order, particularly where the safety of the applicant or children is at risk.
Types of Occupation Orders
The Family Law Act 1996 sets out several sections under which an occupation order may be granted, depending on the housing rights each party has. Each section addresses a different kind of relationship the applicants have with the property. The relevant sections include:
Section 33 applies when both parties have a right to occupy the property (e.g. joint owners or joint tenants). The courts can then decide which party should be permitted to remain in the home and impose restrictions on the other’s occupation.
Section 35 can be used by former spouses or civil partners where only one party has a legal interest in the property. The applicant must still show they are entitled to occupy or were living there as their matrimonial home.
Section 36 is relevant to cohabitants or former cohabitants with no legal entitlement to occupy the property. This section allows the court to grant a temporary right to occupy in cases where the applicant would otherwise be homeless or exposed to harm.
Section 37 is for spouses, civil partners, or cohabitants with no occupation rights, and it permits the court to declare, enforce or regulate their rights to remain in the home during pending legal proceedings.
Section 38 gives similar powers as Section 36 but is associated with the enforcement or continuation of occupation rights pending formal court determination.
Understanding these distinctions is essential because the section under which an application is made affects the court’s powers and what tests are applicable, especially when assessing the balance between protection and property rights.
How Courts Decide: The Legal Tests
When considering whether to grant an occupation order, courts in England and Wales apply a set of criteria known as the “balance of harm” test. This test is enshrined in Section 33(7) of the Family Law Act and is pivotal in determining the outcome. The court must consider two main issues:
1. Whether the applicant or any child will suffer significant harm if the order is not granted;
2. Whether the respondent (the person the order applies to) will suffer harm if the order is made, and if so, whether that harm outweighs the harm likely to be suffered by the applicant or child.
If the harm likely to be suffered without the order is greater, the court must make the order. In cases where it is not straightforward, or the balance of harm does not favour one party considerably over the other, the court falls back on what is termed the “discretionary factors” listed in Section 33(6):
– The housing needs and resources of each party and any children
– The respective financial resources of each party
– The likely effect of any order (or its absence) on the health, safety, and well-being of each party and any children
– The conduct of the parties to each other
This means the court is required to adopt a holistic approach, considering each case’s emotional, financial and practical circumstances. Human experience plays a key role, and judges must weigh the potential for future harm against issues like housing availability, financial dependence, and the practicality of enforcing the order.
Duration and Scope of an Occupation Order
Occupation orders are typically short-term measures. The length of an order can vary, but they often last for a designated period, such as six months, and may be extended if circumstances warrant it.
The powers conferred through an occupation order can be extensive. Orders might:
– Require one party to leave the family home immediately
– Prevent the respondent from returning to the home
– Prohibit entry into a defined area surrounding the property (creating a physical boundary)
– Allocate specific parts of the property to be used by each party (e.g. separate bedrooms or bathrooms when sharing is unavoidable)
– Impose obligations related to the maintenance or payment of utilities or rent/mortgage
The court may also attach a power of arrest to the order if it believes violence or threat of violence is likely. This means that breaches can result in immediate arrest without additional court procedures, thus enhancing the order’s protective effect.
Interaction with Other Protective Orders
Occupation orders are frequently sought alongside non-molestation orders, which prohibit a respondent from harassing, threatening, or contacting the applicant. While non-molestation orders address personal safety, occupation orders address living arrangements.
In practice, these orders often work in tandem. For example, a non-molestation order might prevent the perpetrator from contacting the victim or children, while an occupation order would stop the perpetrator from entering the family home entirely. Together, they can provide a comprehensive shield ensuring both physical safety and mental space for the survivor to begin rebuilding their life.
Importantly, breaching a non-molestation order is a criminal offence and can lead to immediate arrest, whilst breach of an occupation order is only arrestable if a power of arrest has been attached or if contempt proceedings are initiated, often necessitating a return to court.
Evidential Burden and Legal Representation
Securing an occupation order can be daunting. Victims of domestic abuse often face emotional and logistical barriers when seeking legal redress. Unlike criminal law, where the burden of proof is “beyond reasonable doubt,” in civil proceedings, the standard is the “balance of probabilities,” meaning it is more likely than not that the harm alleged occurred.
Applicants must present clear and cogent evidence, which can include witness statements, medical records, police reports, or other supporting documentation that illustrates the scale and nature of the abuse. Evidence of controlling or coercive behaviour, as defined under criminal law, can also be persuasive in the family courts.
Legal aid is available for occupation order applications where the applicant is a victim of domestic abuse and is financially eligible. This helps ensure that access to protection is not solely available to those who can afford private legal advice. However, the complexity of the law and the pressures of self-representation can still pose significant hurdles for unrepresented applicants.
Challenges, Criticisms and Reforms
While occupation orders serve as a vital protective tool, there remain valid criticisms and ongoing challenges. One concern is that victims may be reluctant to ‘oust’ a perpetrator from the home if they think it may escalate the conflict or if they are financially dependent on them. There are also cases where victims fear retribution after the order has expired, especially if no long-term housing alternative has been secured.
Moreover, some professionals argue that the temporary nature of occupation orders means they are frequently seen as delay measures rather than substantive resolutions. Housing and family policy reform advocates stress the importance of transitioning victims to long-term stability rather than simply reshuffling households temporarily.
There have been calls for clearer guidance on the overlapping areas between family and criminal courts, better enforcement mechanisms, and improved post-order support (especially in securing housing and financial independence for survivors).
Recent developments, including the Domestic Abuse Act 2021, aim to bring more coherence and survivor-centred principles into domestic abuse responses, though occupation orders themselves remain grounded in the older Family Law Act. Nonetheless, the general trajectory in legal reform suggests a growing awareness of the need to support victims holistically, not just with legal tools, but with safe accommodation, emotional support, and economic empowerment.
Conclusion
Occupation orders are a critical component of the legal framework protecting victims of domestic abuse in England and Wales. They offer a means for survivors to assert their right to feel safe in their own home and to ensure children are not subject to dangerous environments. Although not always straightforward to obtain, nor an ultimate solution to complex interpersonal and housing issues, occupation orders fill a vital gap in the array of protective measures available.
Greater awareness of how occupation orders operate, as well as continued reform and support, will enhance accessibility and efficacy. As a society, we must continue to ensure that no one has to choose between their safety and their shelter. With the right legal and community structures in place, the home can once again become a haven, not a battleground.