Occupation orders explained – who stays in the family home?

Occupation orders explained is a crucial topic in family law, particularly when disputes arise about who remains in the family home following a relationship breakdown or domestic abuse. If you’re navigating this situation, our Family Law Solicitors are here to support you through every step of the legal process in England and Wales.

Understanding the legal mechanism of occupation orders is essential for individuals seeking safety or fairness in accessing their home. This article outlines the legal context, eligibility, application process, and implications of such orders, especially when the family home is contested.

What is an occupation order?

Occupation orders explained simply: this is a type of court order under the Family Law Act 1996. It determines who can live in the family home and can exclude someone from it, even if they legally own or rent it. It’s particularly relevant in situations involving domestic abuse, harassment, or relationship breakdowns where living arrangements become unsafe or contentious.

Who can apply for an occupation order?

Eligibility to apply for an occupation order depends on your legal connection to the home and your relationship to the other party. You can apply if:

• You own or rent the home (either solely or jointly).
• You are or were married, in a civil partnership, or cohabiting with the respondent.
• You have lived together in the home as a couple.
• You are a parent of a child who lives or has lived in the property.

Grounds for granting an occupation order

The court considers several factors under what is known as the “balance of harm” test. An occupation order may be granted if:

• There is a risk of significant harm if the order is not made.
• One party or a child would suffer more harm by being excluded from the home.
• The applicant has no alternative accommodation.

For more details, consult guidance from Gov.uk on Occupation Orders.

Types of occupation orders

Depending on your legal interest in the property, there are different sections of the Family Law Act that may apply:

• Section 33: Applies to those with legal rights to the property (e.g., owners or tenants).
• Section 35-38: Applies to those without legal rights, but who are or were in a relationship with the owner or tenant.

Duration and enforcement

Occupation orders can last for a specified time (e.g., six months), be renewed, or made for an indefinite period in some cases. Breaching an occupation order can lead to arrest if the order is made with a power of arrest attached.

Interaction with non-molestation orders

Often, occupation orders are made alongside non-molestation orders to prevent harassment or abuse. These two remedies can be pursued together for comprehensive protection, especially in domestic violence scenarios.

How to apply for an occupation order

To apply, you must complete the FL401 form and submit it to your local family court. The process involves:

1. Filing the application and supporting witness statement.
2. Attending a hearing.
3. The court evaluating your evidence under the balance of harm and necessity criteria.

You may apply without notice (ex parte) in emergencies, though a full hearing will follow shortly after to give the respondent a chance to respond. However, it is rare for occupation orders to be made ex parte and rare under more recent practice for non-molestation orders to be made ex parte either.

Case scenario

Consider a situation where Sarah and Tom separate after a 10-year cohabitation. They jointly own their home, but following separation, Tom becomes verbally aggressive. Sarah applies for an occupation order to remain in the home with their two children. The court grants the order under Section 33, citing the children’s welfare and Sarah’s risk of harm.

Expert insights

Our Family Law team recommends:

• Gathering evidence of any abuse or risk (texts, police reports, medical notes).
• Applying for legal aid if you’re eligible – occupation orders can be funded.
• Seeking combined orders (e.g., with a non-molestation order) for greater protection.

Our Family Law Solicitors have a wealth of experience and knowledge in handling all aspects of family law and its complexities. We understand that needing a family lawyer will likely be the most important legal advice you will ever seek. That’s why our expert, friendly team can offer you confidential, informative advice and assistance, in an environment you can trust.

Contact us for more information.

Benefits and challenges of occupation orders

• Benefits: Safety, temporary housing security, protection for children, legal clarity.
• Challenges: Emotional impact, court delays, proof of harm, temporary nature of the order.

FAQs

What is an occupation order?

An occupation order is a legal order issued by a family court to regulate who can live in a property, often used in domestic disputes to exclude one party from the family home for safety or welfare reasons.

Who can apply for an occupation order?

Individuals with legal ties to the property or a close personal relationship with the respondent, such as spouses, ex-partners, or cohabitants, can apply.

Is an occupation order permanent?

No. Occupation orders are usually temporary—often lasting up to 6 months—but they can be renewed or extended depending on the situation.

Can I apply without the other person knowing?

Yes, in emergencies you can apply ‘without notice’. The court may make a temporary order before a full hearing is held.  However it is extremely rare for an occupation order to be made without notice and under recent practice also rare for a non-molestation order to be made ex parte.

What’s the difference between a non-molestation order and an occupation order?

A non-molestation order prevents harassment or abuse, while an occupation order regulates living arrangements. They are often granted together in domestic abuse cases.

Table: Comparison of Occupation Order Types

This article was produced on the 18th July 2025 for information purposes only and should not be construed or relied upon as specific legal advice.