If living in the same property as another person becomes unbearable, it may be possible to seek the Court’s assistance to resolve the living situation with an Occupation Order.

What is an Occupation Order?

An Occupation Order can be pursued to decide who should remain in the property or in certain circumstances, the property may be divided into clearly defined areas. It is also possible to prevent a person from coming within a specified distance of the property if necessary.

Often, an application for an Occupation Order will be made simultaneously with an application for a Non Molestation Order.

In order to apply for an Occupation Order, you will need to be ‘associated’ with the other person. This doesn’t mean that there needs to have been an intimate relationship, for example, you may be relatives or cohabitees.

What will the Court consider?

When deciding whether to make an Occupation Order, the Court must consider the balance of harm test. If it appears to the Court that you or any relevant child are likely to suffer significant harm if an order is not made, the Court will make the order. The Court will not however, make the order if by doing so the other person or a relevant child will suffer significant harm which is as great as or greater than the harm likely to be suffered if the order is not made.

If the Court does not make the order upon considering the balance of harm test, the Court may use its discretionary power to make an order having regard to all of the circumstances of the case, including factors such as:

  1. The housing needs and resources of the parties;
  2. The financial resources of the parties;
  3. The likely effect of an order, or of any decision by the court not to do so on the health, safety or well-being of the parties and of any relevant child; and
  4. The conduct of the parties.

The likelihood of the Order being granted will be dependent upon the individual circumstances of the case.

What should you do if you’re considering applying for an Occupation Order?

The Court can be reluctant to grant Occupation Orders unless it appears completely necessary to do so. Before making an application for an Occupation Order it is sensible to seek legal advice to consider whether the issues can be resolved without instigating Court proceedings.

If it appears that Court proceedings can’t be avoided then any application should be carefully considered; an expert with the appropriate experience will be able to guide you through the process. We have a specialist team with a wealth of experience dealing with Occupation Orders who would be able to assist, whether you are seeking an Occupation Order or resisting one.