Can occupation orders be granted without a hearing?
occupation orders be granted without a hearing
Occupation orders are only granted in very serious circumstances and they are a last resort for people who have experienced domestic abuse. The Court must balance the risk of harm to an applicant and any children with the right to the protection of a person’s home. In cases where the court decides to grant an occupation order it must apply two tests. These are the balance of harm test and the core criteria test.
Unlike a non-molestation order, occupation orders are only available to those who have the legal right or interest to occupy the property. This means that the applicant must be either a sole owner, legal tenant or joint/single/financial home rights holder. The application for the order must be made to the Magistrates or County Court. An Occupation Order can stop someone from entering a specific area of the property or can prevent them from living in the property altogether. The Court will consider the legal ownership of the property as well as any financial contributions to utility bills and mortgage payments in making its decision.
The balance of harm test requires the Court to look at both the likelihood of significant harm to the applicant and any children if the order is made, and the likely harm caused by the respondent if it is not made. If the court believes that the balance of harm weighs in favour of the application then it will allow the order to be granted.
Can occupation orders be granted without a hearing?
A common issue in this type of case is that if a party is not permitted to live in their home, then it can be difficult for them to find alternative accommodation and this is something the court will take into account. In addition to this, the courts will also look at the financial stability of both parties, housing needs and whether or not a party has access to other property before they make their final decision on an occupation order.
It is important to note that a party must give their consent for an occupation order to be made and this can be done by signing an undertaking. This is similar to a statutory declaration but it does not have the same effect as a criminal offence and it cannot be enforced by arrest.
It is essential to seek professional advice when applying for an occupation order. Lyons Davidson can advise on the type of order that is most suitable in your situation and you may be eligible for free Legal Aid. If not we can arrange private fixed fees. We have offices in London and Birmingham and you can call us on 0345 345 434 or use our Legal Adviser Finder to find an adviser near you. Alternatively, you can fill in our online contact form and we will get back to you as soon as possible. Our team can also provide you with information regarding your eligibility for Civil Legal Aid.
