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An occupation order gives a person (and often also a child) the right to occupy some or all of a home and also excludes another person from some or all of the home. The order can only be made in relation to a home which was (or was intended to be) their joint home.
The person seeking the order needs to be (or have been) a spouse or civil partner or have lived with the other person. Or they may have a different/wider "association" (for example, they might have been in an intimate personal relationship with the other party for a significant duration without having lived with them), or they might have a child together without having lived together but they must, in that case, already have an existing right to occupy the home.
Whether the court makes an occupation order depends on the circumstances, but in all cases the court must balance the harm between the people involved and any children if the occupation order was or was not made. It must make an order if it appears that the person seeking the order or child would likely suffer significant harm due to the conduct of the other person if an order is not made. In considering whether to make an order, the court shall have regard to all the circumstances, including the behaviour of the person against whom the order is made but also, for example, the housing needs and financial resources of each person.
A power of arrest can be attached to an occupation order (meaning that in the event of a breach of the order the police can arrest anyone against whom an order is made without any further steps needing to be taken at court), but this is not always automatic and generally requires the use of threats of violence against the victim (or child). If a power of arrest is not attached to an occupation order, then further orders can be made for a warrant of arrets to be carried out by the police and/or for committal to prison by the family court.
In these FAQs and answers, we use 'England' as a shorthand for 'England and Wales' because England and Wales share a single legal system. Scotland, meanwhile, is a different legal system and has different rules for many aspects of family law.
We have also chosen to talk about 'marriages' most of the time (which may be between either an opposite or same-sex couple). Unless we say otherwise, what we have said is also true of civil partnerships (which may also be between an opposite or same-sex couple).
These FAQs (and our website more generally) contain general information based on English law as it stands at the date of publication, but they do not constitute legal advice, nor are they tailored to any couple or family's particular circumstances. Whilst we endeavour to ensure it is accurate and up to date, website users should seek appropriate legal advice before taking or refraining from any action based on the content of the website. We would, of course, be willing to assist with this, and you can contact us here.
Any pricing information is similarly general. Our clients' relationship with us is governed by the terms of the engagement letter sent to them at the beginning of their instruction.
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