Occupation Orders

What an Occupation Order Can Do

Under section 33 of the Family Law Act 1996 the court can enforce your right to stay, regulate how each of you occupies the home, suspend the other person's right to occupy, and require them to leave.

It settles occupation, not ownership: section 39(4) confirms that an occupation order does not affect anyone's right to claim a legal or equitable interest in the property in later proceedings. Ownership belongs to the family home in a financial settlement, or to TOLATA claims if you were not married.

It is often sought with a non-molestation order on the same form, and a court considering an occupation order must also consider whether to make a non-molestation order. If you are in immediate danger call 999; the National Domestic Abuse Helpline is 0808 2000 247, and emergency injunctions cover urgent protection.

Who Can Apply and Under Which Section

You can only apply against an associated person. The section 62(3) list covers:

• spouses and civil partners, current or former
• cohabitants and former cohabitants
• people who live or have lived in the same household, other than as an employee, tenant, lodger or boarder
• relatives
• people who have agreed to marry or entered a civil partnership agreement
• people who have had an intimate personal relationship of significant duration
• people who are each a parent of, or have parental responsibility for, the same child
• parties to the same family proceedings other than Part IV proceedings

The home must be, have been, or have been intended to be a home you shared, and the section depends on your interest in it:

• section 33: you are entitled to occupy, or you have home rights
• section 35: you are a former spouse or civil partner with no right to occupy and they are entitled
• section 36: you are a cohabitant or former cohabitant in that position
• sections 37 and 38: neither of you is entitled and you both occupy the home, 37 for spouses and civil partners, current or former, 38 for cohabitants and former cohabitants

Home rights under section 30 mean a spouse or civil partner cannot be evicted from the other's home while living there except with the court's leave, and with leave may move back in.

A child under 16 needs the court's leave to apply. If an engagement or a civil partnership agreement has ended, a section 33 application relying on it must be made within three years of the day it ended, and section 44 requires written evidence unless there was a ring or other token, or a ceremony in front of witnesses.

The Test the Court Applies

Section 33(6) sets the core criteria: the housing needs and housing resources of each of you and any relevant child, your financial resources, the likely effect on health, safety or well-being of making an order or of not making one, and the conduct of the parties towards each other and otherwise.

Section 33(7) adds a duty, the balance of harm test. Where you or a relevant child are likely to suffer significant harm attributable to the respondent's conduct without an order, the court must make one, unless the respondent or a child would suffer significant harm if it is made and that harm is as great or greater. Section 35(8) and section 37(4) carry the same duty; under sections 36 and 38 the harm questions are weighed rather than binding, alongside the nature of the relationship.

Excluding someone from their own home is a serious step. The Family Justice Council's guidance records that interference with the respondent's rights must be proportionate, that an order made without notice should not bar a respondent from their home or workplace without specific evidence, and that the court works from the Domestic Abuse Act 2021 definition, which covers coercive control and economic abuse.

Your Statement and the Evidence

Rule 10.2 of the Family Procedure Rules requires a witness statement in support, and one that gives reasons where you ask the court to act before the respondent is told. The application goes on form FL401, published with a template statement and guidance on how to apply. Your statement ends with a signed statement of truth.

The Family Justice Council expects the statement to set out the relationship that makes you associated persons, the incidents and patterns of abuse and their impact, any corroborative evidence, and the reason for each term sought. For an occupation order it must also address the balance of harm test: the title or tenancy, what each of you pays towards the mortgage or rent, what other accommodation either of you could use, and what harm continues if nothing changes.

Section 7 of form FL401 is the occupation order part: question 7.17 for what you want to happen in the home, including keeping the respondent away from the surrounding area, 7.18 for rent, the mortgage, repairs and the contents, and 7.19 for the housing and hardship evidence. An exclusion area is named by road, not by distance, and giving both dates of birth on the face of the order helps enforcement.

How the Process and Enforcement Work

1. Advice first: which orders will protect you, and whether bail conditions already do.
2. We prepare form FL401, the statement, the draft order, form C8 for confidentiality and form D89 for bailiff service.
3. The papers are emailed to the court, and urgent applications go to the first available judge.
4. Section 45 can let the court act before the respondent is told: see applications made without notice.
5. Service is on the respondent personally, never by you, at least two days before an on notice hearing or as the court directs. On a section 33, 35 or 36 application the lender and any landlord are served and may make representations.
6. The hearing is in private, and the court can accept an undertaking, continue the order or list a contested hearing.
7. An order made without notice carries a return date, when the court decides whether it continues.

Either of you can apply under section 49 to vary or discharge an order, and an extension goes on form FL403 before the order ends.

Where the respondent has used or threatened violence against you or a child, section 47(2) requires the court to attach a power of arrest unless satisfied you will be adequately protected without one. That duty does not apply to an order made without notice, where the court may attach a power of arrest only if the respondent has used or threatened violence and there is a risk of significant harm if it is not attached immediately. The order goes to the police. Breaking the order is a contempt of court rather than an offence in itself, unlike a breach of a non-molestation order.

When Legal Advice Is Especially Important

Advice matters most where the respondent is the sole owner or tenant, where a short maximum under section 36 or 38 has to buy enough time, and where you are the respondent facing the loss of your home.

Children's arrangements usually need attention, through child arrangements orders, fact finding hearings, and domestic abuse and child arrangements. If your immigration permission depends on a partner, see settlement after domestic abuse. The other orders sit on our domestic abuse injunctions page.

How RakLAW Solicitors Can Help

We take the application from first advice through to the hearing: choosing the section that fits your interest in the property, drafting the statement so the housing, financial and harm evidence sits in one place, and dealing with service and the return date. We also act for respondents.

RakLAW Solicitors is at 42 Shad Thames, London SE1 2YD, in Southwark, a short walk from Tower Bridge, with Tower Hill, London Bridge and Bermondsey nearby. We offer a free 15-minute consultation: book an appointment or call 0203 345 2000. Our family work is privately funded and we do not offer legal aid; our family law fees page explains how we charge. Our founder and solicitor is Rakesh Prajapati.