Occupation Order

An Occupation Order may be granted by the county court or the magistrate’s court. They may be made in a standalone application or other proceedings. The applicants may be spouses, former spouses, cohabitants, or former cohabitants.

The applicants may be made where the applicant has a legal or beneficial interest in the matrimonial home. In this case, the parties need not be married.

In making an Occupation Order, the court may allow the applicant to remain in possession, require the respondent to permit the applicant to enter the house, the respondent to allow the applicant peaceful enjoyment of the house that has been occupied by both parties in a manner that is regulated.

The court may order the respondent’s right to live in a property in a manner that is regulated. The court may order the respondent’s right to live in a property be suspended, restricted, or prohibited. It may order the respondent to leave the dwelling house.

The party who is the beneficiary of an order may be ordered to make payments to the other if the other has a right to reside in the property by reason of a legal or beneficial ownership of the property or a contract. The respondent can be excluded from an area around the property.

This power replaced both occupation and non-molestation orders. The exclusion order can be applied around other places such as the workplace, children’s school, and also court generally.

An occupation order overrides property rights and requires exceptional circumstances. An application for an occupation order may be made on a one-sided ex parte application where circumstances of urgency are required.

The criteria for an occupation order where parties are married are as follows:

• Housing needs and resources of each and the children.
• Financial resources.
• Effects on health and safety and well-being of the couple and children.
• Conduct of parties.

The same principles apply where the parties have a legal and beneficial ownership on the party but are not marital or cohabiting.

Where the couple is divorced and applies former spouses, the above criteria and the following additional criteria are relevant:

• Length of time parties lived together.
• Length of time since divorce.
• Existence of pending proceedings in respect of maintenance and ownership of the family home.

Where the parties are cohabitants or were cohabitants, the court must also consider:

• Nature of the relationship.
• Length of time parties lived together as husband and wife.
• Whether there are any children for whom they both have responsibility.
• Length of time since separated.
• The existence of other proceedings, including those under children’s legislation and ownership of property.

If the court is of the view that the applicant or the children will suffer significant harm, the court must make the order unless the harm suffered as a result of the order is created in the harm which is visible to the respondent’s conduct and likely to be suffered by the applicant and children if the order is not made.

test balances the harm caused by domestic violence and the curtailment of the right to reside. If the harm is significant, the order must be made. If there is no significant harm, the court has greater discretion.

An occupation order can be made for an indefinite period or until an event occurs or until a further order is made. In the case of former spouses or cohabitants, the order can only be made for 12 months but may be renewed.