Family

How to Get an Occupation Order

If you are in an abusive relationship, you are entitled to seek an occupation order so you can make your partner move out of the family home or gain access to the property if they have barred you from it.

What are occupation orders?

An occupation order is an order under the Family Law Act 1996 conferring, declaring, restricting or regulating rights of occupation in the family home between family members or those involved in a domestic relationship.

Who can apply for an occupation order?

You can apply for an occupation order if you own, rent or share a home with a person who is your spouse, partner, family member, person you’re engaged to or parent of your child.

Physical violence does not need to be present to apply for an occupation order.

How do I apply for an occupation order?

To get an occupation order you must apply to the court.  It is advisable to seek professional legal advice before doing so.

What does an occupation order do?

An occupation order is not limited to excluding a person from living in or entering a premises; they can also:

  • state who is to pay the rent or mortgage and make repairs on the property
  • if a couple is living in the same house, state which parts of the house are to be used by whom
  • set out how long the person granted occupation can remain in the home
  • prevent the owner of the home from evicting the person granted the occupation order (this does not include private landlords, rather only those who are subject to the occupation order)

What factors will the court take into account when granting an occupation order?

The court will apply two tests when deciding whether or not to grant an occupation order.

  1. The ‘balance of harm test’- If it appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to the conduct of the respondent if an order is not made, it is mandatory for the court to make an occupation order unless it appears that the respondent or any applicable child is likely to suffer significant harm if the order is made and that harm is as great or greater than the harm likely to be suffered by the applicant.
  2. The ‘core criteria’ test – The court, after looking at the following criteria, has the discretion to grant the injunction even if the ‘balance of harm’ test’ fails:
  • the housing needs and housing resources of each of the parties and of any relevant child
  • the financial resources of each of the parties
  • the likely effect of any order, or decision not to exercise powers, on the health, safety or well-being of the parties and any relevant child
  • the conduct of the parties

If you require an occupation order it is imperative you seek legal advice from an experienced family solicitor.


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