Advising on abuse in relationships

If you are a victim of domestic abuse, it may be necessary to secure an order from the Court excluding your partner or spouse from the family home.

An Occupation Order decides who can live in the family home or enter the surrounding area.

The Court can decide who should or should not reside in all or part of the home. Occupation Orders can also exclude the other person from an area around the home. When in force, an order can also deal with practical matters of occupation, including who bears responsibility for payment of the rent or mortgage on the property.

The Court has a discretionary power to grant an occupation order and in making the decision whether to grant one and on what terms, has to consider the balance of harm and the core criteria tests.

The balance of harm test sets out the Court’s duty to balance the harm that would be caused to you, the respondent and your children, if the occupation order was or was not made. The Court must make an order if it appears that you or your children are likely to suffer significant harm attributable to the conduct of the respondent if an order is not made.

Under the core criteria test the Court has to consider all the circumstances including, but not limited to:

• The housing needs and housing resources of each of the parties and your children.
• The financial resources of each of the parties.
• The likely effect of any order, or of any decision by the court not to exercise its powers to make an order on the health, safety or well-being of the parties and your children.
• The conduct of the parties in relation to each other and otherwise.

A power of arrest can be attached to an Occupation Order.

When the application is issued on notice (so you have let the respondent know you are making the application), if the Court is satisfied that the respondent has used or threatened violence against you or your children, a power of arrest will be attached unless the Court is satisfied that you and your children would be adequately protected without it.

When the application is issued without notice (so the respondent has no idea you are making the application), a power of arrest may be attached. This is usually done if the respondent has used or threatened violence against you or your children and there is a risk of significant harm to you or your children, if the power of arrest is not attached.

Who can apply?

You can apply if:

• you own or rent the home and it is, was, or was intended to be shared with a husband or wife, civil partner, cohabitant, family member, person you’re engaged to or parent of your child;
• you do not own or rent the home but you’re married or in a civil partnership with the owner and you’re living in the home;
• your former husband, wife or civil partner is the owner or tenant, and the home is, was, or was intended to be your shared matrimonial home;
• the person you cohabit or cohabited with is the owner or tenant, and the home is, was, or was intended to be your shared home.

How long will the order last?

The likely duration of an occupation order will depend on what basis you are entitled to occupy the relevant property.  Orders can be made to a specified period, until the occurrence of a specific event or further order, or for a maximum time of, say, 6 months.

We can work with you to seek the order that best suits your needs and ensures the safety of you and your children for as long as necessary.

What if an order is breached?

If the respondent breaches the sections of the order to which a power of arrest has been attached, they can be arrested without the need to obtain a warrant. It will therefore be necessary for you to report any breach to which a power of arrest is attached to the police.

Should the respondent breach any aspect of the order to which a power of arrest is not attached, you may apply to the relevant judicial authority for the issue of a warrant for the arrest of the respondent.

Is a Court order the only option?

The Court may accept an undertaking in any case where it has the power to make an occupation order. However, it must not do so where a power of arrest would be attached to the order. An undertaking to the Court is enforceable as if an order had been made.

You may feel that a more therapeutic process would be more suited to your situation.  Whilst ensuring your and your children’s safety at all times, we are able to discuss other ways of resolving any dispute without involving the court if appropriate.

I have an immediate concern for my safety. Can I obtain an Occupation Order stating that my partner must vacate our home immediately?

A Court will only grant such an order in exceptional circumstances. You should of course telephone the police if you are concerned you are in immediate danger.

Does my partner have to have been physically violent in order to secure an occupation order?

No, physical violence is not necessary.