An occupation order is a family court order under the Family Law Act 1996 that decides who can live in the family home and who must leave. It’s most often used when someone is no longer safe living with a partner or ex, and it can remove an abuser from the property even if they own or rent it. You apply on form FL401; there’s no court fee, and in an emergency the court can consider granting protection on short notice or in rare occasions without any notice to the other person.
If your home no longer feels safe, you’re not overreacting by looking into this. We help people in exactly this position, and below we walk through what an occupation order is, when to apply, what evidence helps, and how quickly you can be protected.
What does an occupation order mean?
An occupation order regulates who lives in the family home, or in parts of it. Depending on your situation, the court can order the other person to leave, stay away from the area around the home, keep to certain rooms, or let you move back in.
It’s a protective order, not a decision about who owns the property. An occupation order does not change legal ownership or tenancy; those are dealt with separately. It simply governs who can occupy the home while things are sorted out.
You’ll sometimes see the term written as “occupancy order” or “occupational order.” These are common misspellings of the same thing; there is no separate order by those names.
When should I apply for an occupation order?
You should consider an occupation order when living with the other person has become unsafe or intolerable, and you need them to leave (or need to return safely) right now. Common situations include:
- You’ve experienced domestic abuse and can’t feel safe while your partner or ex still lives in the home.
- You’ve had to flee and want the court to let you move back in while excluding the other person.
- You share a home with someone whose behaviour, threats, intimidation, or controlling conduct is putting your health, safety or wellbeing, or your children’s, at risk.
Importantly, harm is not limited to physical violence. The court recognises the impact of coercive control, threats, harassment and emotional or financial abuse when deciding whether an order is needed.
Who can apply for an occupation order?
You can only apply if you’re an “associated person”, broadly, spouses, civil partners, cohabitants (current or former), close family members, or people who live or have lived together as a couple. Civil partners have the same protection under the Act as married couples.
Which part of the law you apply under depends on your legal connection to the property:
- Section 33: you have a right to occupy the home (for example, you’re an owner, joint owner or tenant, or you have “home rights” through marriage or civil partnership).
- Section 35: you’re a former spouse or civil partner who no longer has a right to occupy a home you once shared.
- Section 36: you’re a cohabitant or former cohabitant with no legal right to occupy the home you lived in together.
There are further provisions (sections 37 and 38) for situations where neither party is legally entitled to occupy. If you’re not sure which applies to you, we can identify the correct route; getting this right matters, and it’s easy to trip up on.
What does the court consider before granting an occupation order?
For a section 33 application, the court weighs two things.
1. The balance of harm test.
This is the heart of the decision. Under section 33(7) of the Family Law Act 1996, if the court finds that you or a relevant child are likely to suffer significant harm because of the other person’s conduct if no order is made, it must make the order unless the other person (or a child) would suffer harm that is as great or greater if the order is made. The leading case, Chalmers v Johns [1999], confirms the court looks at this first.
2. The core criteria (section 33(6)).
Alongside the harm test, the court also considers:
- the housing needs and housing resources of each of you and any child;
- the financial resources of each party;
- the likely effect of making, or not making, the order on the health, safety and wellbeing of everyone involved;
- the conduct of both parties.
The welfare of any child involved is always central to how the court balances these factors.
What evidence do I need for an occupation order?
Strong evidence makes a real difference, and it’s the part clients most often ask us about. There’s no single “required” document; the court looks at the overall picture. Helpful evidence includes:
- Police reports or incident/crime reference numbers from any callouts or reports.
- Medical records or GP notes documenting injuries, stress or the effect on your health.
- Photographs of injuries or of damage to property.
- Witness statements from friends, family or neighbours who saw or heard incidents.
- Messages threatening or abusive texts, emails, voicemails or social media posts.
- A personal log or diary recording dates, times and what happened.
Everything is set out in a written witness statement supporting your application. We help clients gather and organise this so nothing important is missed and so the statement tells a clear, credible story to the judge.
How do I apply for an occupation order?
The application is made to the family court on form FL401, the same form used for a non-molestation order, together with your supporting witness statement. The forms and guidance are available on GOV.UK.
There is no court fee to apply for an occupation order. The main cost is legal advice and representation, which is optional but, in our experience, well worth it given how much turns on the evidence and the correct legal basis.
Can I get an emergency occupation order?
Yes. Though rare, if you or a child would be at risk of significant harm, you can apply “without notice” (also called ex parte), meaning the court considers your application before the other person is told. This is also appropriate if warning them first might lead to them pressuring you to drop the application.
In genuine emergencies, an order can often be granted the same day. The court will then list a return hearing shortly afterwards, usually within a couple of weeks so the other person can respond and the judge can decide what happens longer term. If there’s no immediate risk, the application is made “on notice,” and the other party is served and given a chance to attend the first hearing.
Where the other person has used or threatened violence, the court can attach a power of arrest, allowing the police to arrest them if they breach the order.
How long does an occupation order last?
It depends on the section you apply under. Orders under section 33 (where you have a right to occupy) can be made for a set period, until a specific event, or until a further order of the court, so they can be longer-lasting. Usually, the order covers the time needed to decide what should happen with the property long term.
Orders under sections 35 and 36 (where you have no existing right to occupy) are often limited to six months, though they can usually be extended if protection is still needed and every case is different. In practice, many occupation orders run for six to twelve months and can be renewed.
How much does an occupation order cost, and can I get legal aid?
There’s no court fee, so the cost is really about legal representation. Legal aid may be available for domestic abuse cases if you meet the means test and can provide the required evidence of abuse; this is arranged through a legal aid provider.
We should be upfront: we don’t offer legal aid ourselves. What we do is keep our fees affordable, and give you a clear picture of likely costs from the outset, so there are no surprises.
How is an occupation order different from a non-molestation order?
They’re the two protective orders under Part IV of the Family Law Act 1996, and they do different jobs:
- A non-molestation order stops someone using or threatening violence, harassing, intimidating or pestering you. Breaching it is a criminal offence, and the police can arrest and prosecute.
- An occupation order deals with who lives in the home.
They’re often applied for together on the same FL401: a non-molestation order to stop the abuse, and an occupation order to make the home safe. Our domestic abuse solicitors can advise on whether you need one or both, and you can read more about the wider legal options for domestic abuse, including protecting your children through a child arrangements order.
Frequently asked questions about occupation orders
Is an “occupancy order” or “occupational order” the same as an occupation order?
Yes. Both are common misspellings of “occupation order.” There’s no separate order under those names; it’s the same Family Law Act 1996 order.
Can I get an occupation order if I own the house?
Yes. If you own or jointly own the home (or rent it), you apply under section 33. Owning the property strengthens your position, but the court still applies the balance of harm test.
Can I get one if the house is in my ex’s name?
Possibly. Even without a legal ownership interest, you may qualify under section 35 or 36, or through “home rights” if you’re married or in a civil partnership. We can confirm your eligibility quickly.
Do I have to have been physically assaulted to apply?
No. It’s a common misconception. The court also considers threats, coercive and controlling behaviour, harassment and emotional or financial abuse.
What happens if the other person breaches the order?
If a power of arrest is attached, the police can arrest them and bring them back to court, where they can face penalties for contempt. If the order includes a non-molestation order, breaching it is a criminal offence in its own right.
How quickly can I be protected?
In an emergency, often the same day through a without-notice application, followed by a return hearing.
How Holland Family Law can help
If you’re thinking about an occupation order, you shouldn’t have to work it out alone. We can:
- assess your safety and confirm which section you’re eligible to apply under;
- prepare your FL401 application and a clear, persuasive witness statement;
- apply for emergency protection the same day where the situation is urgent; and
- represent you at the hearing and deal with the other side on your behalf.
Claire and our team have extensive experience with domestic abuse injunctions and will handle everything with discretion, care and a focus on getting you safe.
Book your free consultation
We offer clear, practical advice, and we provide an initial consultation at no charge. Contact Holland Family Law, based in Leicester. We support clients across London, Derby, Nottingham, Northampton, Lincoln, Loughborough, Birmingham, Buckinghamshire, and Windsor. Book your free, no-obligation 30-minute consultation today. Expert Legal Support is just a call away. Reach us on 0116 436 2170; we’re here to help you navigate the law with confidence.
