Key Takeaways
- An occupation order is a family court order under the Family Law Act 1996 that decides who can live in, or be kept away from, the family home.
- It is most often used in domestic abuse cases and can require the other person to leave the home or stay away from the area around it.
- You can apply if you are associated with the other person, for example as a spouse, civil partner, cohabitant or family member, and there is no court fee to apply.
- An occupation order is temporary and does not decide who ultimately owns the property.
When home stops feeling safe, it can be hard to see what your options are. If you are living with an abusive partner, or a relationship has broken down and you cannot agree on who should stay in the family home, an occupation order is one way the family court can step in.
An occupation order decides who is allowed to live in the family home. It can require the other person to leave, keep them out of part of the property, or stop them coming back, and it can even exclude them from the area immediately around the home. It is one of the main protections available under the Family Law Act 1996, and it often works alongside a non-molestation order.
Keep reading to find out what an occupation order does, who can apply, how the court decides and how to apply, including in an emergency. You will also see how it differs from a non-molestation order, so you can avoid pursuing the wrong protection at a time when acting quickly matters.
And if you would rather talk it through first, our family law solicitors offer a free 30-minute consultation to help you understand your options before you take any step.
What does an occupation order do?
An occupation order is made by the family court under the Family Law Act 1996. It sets out who has the right to live in the family home, and it can either confirm and protect one person’s right to stay or place restrictions on the other person’s right to be there.
In practice, an order can require one person to leave the home, let the other move back in if they have been shut out, divide the property so each person uses a different part, or keep one person away from the area around the home.
What it does not do is decide who owns the property. An occupation order is a short-term measure to sort out living arrangements and protect safety. Ownership and longer-term finances are dealt with separately, usually as part of divorce or financial proceedings.
How is it different from a non-molestation order?
These two orders are often confused, and they are frequently applied for together, but they do different jobs.
A non-molestation order is about behaviour. It stops someone using or threatening violence, harassing or pestering you, or contacting you. An occupation order is about the home, and decides who can live there. You can read more about the first type in our guide to how long a non-molestation order lasts.
If you are living with someone who is abusive, you may need both: a non-molestation order to stop the abuse, and an occupation order to give you safe use of the home.
Who can apply for an occupation order?
To apply, you need to be associated with the other person. The Family Law Act sets out who counts as associated, and it covers a wide range of relationships.
- Married couples, civil partners, and former spouses or civil partners.
- People who live together or have lived together as a couple, and former cohabitants.
- People who have agreed to marry or enter a civil partnership.
- Relatives, and people who have had an intimate personal relationship of significant duration.
Which part of the Act you apply under depends on whether you already have a legal right to occupy the home, for example as an owner or joint tenant, or whether you are applying without that right. This affects what the court can order and for how long, which is one reason it helps to take advice first. Our domestic abuse solicitors can tell you where you stand.
How does the court decide?
The court does not grant an occupation order automatically. Removing someone from their own home is treated as a serious step, so the court weighs things up carefully.
At the centre of the decision is the balance of harm test. The court asks whether you, or any child involved, are likely to suffer significant harm because of the other person’s behaviour if no order is made, and weighs that against any harm the other person would suffer if the order is granted.
Alongside this, the court looks at the housing needs and resources of everyone involved, their financial resources, the conduct of both parties, and the effect that making or not making an order would have on the health, safety and wellbeing of the parties and any child. Harm here is not limited to physical violence. It can include the impact of controlling behaviour, threats and emotional abuse.
How do I apply, and what if it’s urgent?
An application is made to the family court on form FL401, which is the same form used for non-molestation orders. There is no court fee to apply.
You will need to provide a witness statement explaining what has happened and why you need the order. This is the heart of the application, so it should be clear, specific and set out events with dates where you can. Our guide on the evidence you need for an occupation order goes into this in more detail.
If you are in immediate danger, call 999.
Where there is an urgent risk of harm, the court can make an order without notice, meaning the other person is not told in advance. A follow-up hearing is then held so they can put their side, and the court decides whether to continue the order. Where violence has been used or threatened, the court can attach a power of arrest, which lets the police arrest the other person if they break the order.
In some areas, a newer protection called a domestic abuse protection order is being piloted as an alternative, so it is worth checking which one applies to you. GOV.UK also lists organisations that can support you through domestic abuse.
How long does an occupation order last?
Occupation orders are meant to be temporary. They give people breathing space to sort out longer-term arrangements rather than settling anything permanently.
Depending on which section you apply under and your relationship to the property, an order commonly lasts up to six or twelve months, and many can be extended if protection is still needed. An order for a former partner who has no legal right to the home is more limited and can usually be extended only once.
Because it is temporary and does not touch ownership, an occupation order often runs alongside other steps, such as divorce or sorting out the finances, where the longer-term future of the home is decided.
Speak to a family law solicitor about occupation orders
Deciding whether to apply for an occupation order, a non-molestation order or both is rarely straightforward, and the right approach depends on your circumstances and how urgent things are. Getting advice early can help you protect yourself and your children without delay.
At Osbourne Pinner, our family law solicitors help people in difficult and often frightening situations apply for the protection they need, including urgent applications where safety is at risk. We will listen, explain your options clearly and act quickly where it matters.
Please note that this article is for informational purposes only and does not constitute legal advice. We always recommend speaking to a qualified solicitor for advice tailored to your specific circumstances.
We offer a free 30-minute consultation to discuss your situation. You can speak with us via video call or visit our offices in Harrow, Canary Wharf, Piccadilly Circus or Manchester. To arrange your consultation, call 0203 983 5080, email [email protected] or complete the form below.
