Occupation Order

An occupation order is a court order specifying who is and who isn’t able to live in the family home. Such an order can also specify who can enter the surrounding area. These orders are commonly used where one spouse has changed the locks to the matrimonial home and will not allow the other spouse in. The purpose of the order could also be to gain the right to entry to the family home. An order can also specify which person will be responsible for paying the mortgage and the household bills.

An occupation order falls under the scope of Part IV of the Family Law Act 1996 and is used to protect people. More often than not an order is used in cases of domestic violence where one person has been subject to violence or has been threatened.

As well as to exclude someone from the family home, a Court protection order can also be used for:

• Enforce the right to remain in the property
• Require permission to enter and remain in the property
• Regulate the occupation of the property
• Prohibit, restrict or suspend the exercise of occupation in the property
• Exclude someone from a defined area in which the property is located, or
• Require the departure from the property.

This housing injunction is granted in serious circumstances as they can exclude someone from the home they are entitled to live in.

Domestic violence thrives in environments where abusers control access to safe spaces. Occupation orders disrupt this control by giving courts the power to exclude perpetrators from the family home while ensuring victims can remain in familiar, secure surroundings.

The dual protection strategy While a non-molestation order prevents harassment and direct contact, an occupation order controls physical access to your home and surrounding areas. Together, they create comprehensive protection that addresses both behavioral and spatial aspects of domestic abuse.

This combination proves particularly powerful because it:

• Maintains housing stability for you and your children
• Prevents the financial burden of emergency accommodation
• Preserves children’s school and social connections
• Provides clear, enforceable boundaries that police can monitor

Police enforcement capabilities When occupation orders include power of arrest provisions, every police officer becomes part of your protection network. Breaches trigger immediate arrest without requiring additional court applications or warrants.

Courts typically attach power of arrest when evidence shows:

• Previous incidents of violence or credible threats
• Escalating patterns of dangerous behavior
• Presence of weapons or threats to use violence
• Substance abuse affecting judgment and impulse control
• Previous breaches of court orders or police warnings

Creating safe spaces for recovery Beyond immediate protection, Court protection orders provide the stable environment necessary for healing and planning your future. They give you time to arrange child arrangements, pursue financial settlements, and access support services without constant fear of confrontation.

In order to attempt to secure an order you will need to satisfy to the courts that you have some connection with the property which is to be included in the order. This includes having contractual or legal benefit in the property or a right to occupy. You do not need to be named as an owner to have a benefit in the property and could have acquired a connection through your marriage or occupation of the property.

You will also need to satisfy that you have some relationship with the respondent or the other person of the order. This requirement is governed by s62 and s63 of the Family Law Act 1996. It covers spouses, civil partners, cohabitees, relatives or people with intimate personal relationship which is of a significant duration.

For a court protection order the property in question must also be or have been the home of both parties and was intended to be their home.

You don’t need to own property to apply for an occupation order. Eligibility includes:

If you own or co-own the property:

• Sole owners or joint can apply under Section 33
• Tenants with lease agreements have occupation rights
• Courts consider housing needs and financial resources of both parties

If your partner owns the property:

• Married couples have automatic matrimonial home rights
• Civil partners have equivalent protection
• Cohabitants can apply under section 36 without ownership

For rental properties:

• Joint tenants both have occupation rights
• Courts consider tenancy agreements and housing benefit arrangements
• Landlords should be notified of any orders affecting their properties

To apply for an occupation order, complete form FL401 and submit it to your local family court. Applications are completely free with no court fees required similar to a non molestation order. You’ll need to provide a detailed witness statement explaining why you need protection and evidence supporting your case.

When completing an application you must ensure you accurately complete your details, details of the respondent against whom the occupation order is made and provide details of the order you are seeking and the reasons for making the application.

You will be required to provide an order witness statement which will be used as the basis of your application and will show your reasons for making the application so the court is aware of the background circumstances in order to allow it to carefully consider your application. You will then be required to make 2 copies of the completed order form together with your occupation witness statement and submit it to the court.

Occupation orders are usually made for a specified period of time. These could also be made until the occurrence of a specified event or until a further order is made which extends the order already in place. Most orders are made for a period of 6 months depending on the circumstances but can be extended on one or more occasions for a maximum of 6 months each time.

If you would like more advice on making an application for an order or want information and advise specific to your individual circumstances, then contact us today and one of our family specialists will assist you further.

When domestic violence escalates or you face immediate threats, emergency occupation orders provide legal protection within hours through without notice applications.

Emergency situations include:

• Recent escalation in domestic violence or credible threats
• Being unlawfully excluded from your home
• – Immediate risk to children’s safety
• – Police advice to seek urgent court protection
• – Weapons mentioned or displayed during arguments

Without notice applications allow you to seek protection without warning the respondent when giving notice would increase danger, cause intimidation, or allow evidence destruction.

Same-day court hearings are available for urgent cases where delay would increase risk to applicants or children. While courts operate during business hours, emergency applications can be expedited through duty solicitor schemes.

For immediate danger situations, contact our specialist family lawyers for emergency protection guidance.

The criteria for applying for an occupation order is set out in various sections of the Family Law Act 1996.

You may apply for an occupation order under section 33 if you are entitled to occupy the property by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving you the right to remain in occupation. People can apply for a Court protection order under this section if they have home rights to the property. This section can be used by sole or joint owners or tenants and joint tenants of a property.

Under section 35 of the Family Law Act 1996 you can apply if you are a former spouse or civil partner with no existing right to occupy the property.

Section 36 allows you to make an application if you are a cohabitant with no existing rights to occupy the property.

If neither you nor your spouse are entitled to occupy the property you can apply by using section 37.

Section 38 is applicable if neither you nor you cohabitant or former cohabitant is entitled to occupy the property.

If you are able to satisfy one or more of the above criteria for an occupation order, then the courts will apply two tests before granting the order.

At a hearing the court will apply two tests. The tests are the balance of harm test and the core criteria test.

When considering the balance of harm test at an occupation order hearing the court will be required to balance the harm caused to the applicant, the respondent and any children in the event an order was made or not to be made. Under section 33(7) the court must make an order if it appears to the court that the applicant or any child is likely to suffer significant harm attributable to the respondent if an order is not made.

If the applicant is entitled to occupy the property or are a spouse or a former spouse of the respondent and there would be a risk of harm to the applicant or a child, then the courts will grant an order. If however the applicant is not entitled to occupy the property as a cohabitant or a former cohabitant then the courts must simply have a regard to the balance of harm test. If an applicant is associated to the respondent in some other way and is not entitled to occupy the property, then they will not be able to make an application for an occupation order.

There are exceptions to the balance of harm test. These particularly apply when it appears that the respondent or any child is likely to suffer significant harm if the order is made, or the harm likely to be suffered by the respondent or the child is as great as or greater than the harm likely to be suffered by the applicant or child if the order is not made. When considering an occupation order if it can be proven that there is a risk of significant harm to a child then the child’s interests and needs will be the courts paramount consideration.

The second test at an order hearing is that of the core criteria. This is a test which the court may have regard to at any time when granting an occupation order even where they the balance of harm test has failed. This was confirmed in the case of Chalmers v John (1999).  The requirements of the core criteria test will depend on the applicants entitlement to occupy the property and their relationship with the respondent.

If the applicant is entitled to occupy the property then the core criteria to be considered under S.33 (6) are:

• the housing needs and housing resources of each of the parties and of any relevant child.
• the financial resources of each of the parties.
• the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child; and
• the conduct of the parties in relation to each other and otherwise.

If the applicant is not entitled to an occupation order but is a spouse or former spouse of the respondent, then the court may have regard to some additional factors. These additional factors of the core criteria test are:

• the length of time since the parties lived together,
• the length of time since the marriage was formally ended and
• any ongoing ancillary relief applications or disputes as to the ownership of the property.

If the applicant is not entitled to an occupation but is a cohabitant or former cohabitant of the respondent, then the court may also have regard to:

• the nature and length of the parties’ relationship,
• whether there are or have been any relevant children,
• the length of time since the parties’ relationship came to an end and whether there are any ongoing Schedule 1, Children Act 1989 maintenance applications.

When applying for an order you must satisfy the three requirements which are:

• You must have a legal or contractual benefit in the property or a right to occupy. This usually covers situations where you may not be named as a home owner but have matrimonial home rights through your marriage and occupation of the property as your home.
• The property is or has been at some time the home of both parties and was intended to be your home.
• Both you and the party against whom the order is made against are associated. This covers situations where you are either a spouse, civil partner or cohabitee, or you have agreed to marry or have had intimate personal relationship with one another for a significant period of time.

An occupation order hearing is held in private. In most cases only you and any legal representatives will be present. If you provided notice of you application to the respondent, then they may also be present at the hearing.

At the occupation order hearing the court will consider your occupation order form together with your order statement and any evidence you have provided at the occupation order hearing the judge will also consider whether you are able to apply for an order and consider the balance of harm test and the core criteria test.

Following consideration of all information and evidence at the end of the occupation order hearing the court will make one of the following decisions:

• request the respondent to provide an undertaking to do or not do something
• request you to provide more information in support of your occupation order. If this is the case an interim order may be granted to allow you time to obtain all the information, or
• issue the order.

If an occupation order is issued you will receive a copy from the court, and the court may either require you to serve the order on the respondent or alternatively agree to serve the documents on the respondent themselves.

Winning an occupation order requires more than completing forms correctly – it demands a comprehensive understanding of how family courts evaluate these critical applications. Our approach combines legal expertise with practical courtroom experience to maximize your chances of success.

Understanding the legal framework The Family Law Act 1996 provides multiple routes to occupation order protection, each with specific criteria and advantages:

Section 33 applications work best when you have existing property rights, whether through ownership, tenancy, or matrimonial home rights. These applications carry the strongest legal presumption in your favor.

Section 35 applications protect former spouses and civil partners even without property rights, with courts considering the length of marriage, time since divorce, and ongoing financial proceedings.

Section 36 applications support cohabitants without property rights, focusing on relationship duration, shared home history, and children’s welfare needs.

Mastering the balance of harm test Courts must grant occupation orders when you or your children would suffer significant harm without protection, unless the respondent would face greater harm. Success depends on presenting compelling evidence through:

• Medical records documenting injuries and their impact
• Police incident reports with crime reference numbers
• Witness statements from people who’ve observed the abuse
• Photographs showing injuries or property damage
• Employment records showing missed work due to incidents
• School reports indicating impact on children

The evidence presentation advantage Our family lawyers know exactly how to present evidence that resonates with judges. We help you build a chronological narrative that demonstrates escalating risk while anticipating and countering likely defenses.

Our family lawyers are proud to have successfully guided countless contested occupation order applications because we understand what courts need to see.

Ready to build your winning strategy? Contact our expert team on for a comprehensive case assessment.

You need to ensure your need for an order is clearly detailed and explained together with providing evidence which is in your favour. At Kabir Family Law, our family lawyers in Oxford as well nationally can provide you with advice and guidance on how to best complete your order application and can provide further guidance and assistance should you need. Contact us today to discuss your enquiry further.

A breach of an occupation order is not automatically a criminal offence. However, the courts may attach a power of arrest to one or more provisions of the order. This will usually be the case if the courts feel the respondent has used violence or threatened to use violence. If an occupation order is breached then the respondent can be punished by up to 2 years in prison or face a fine of up to £5,000.00.

The courts may attach a power of arrest to one or more provisions of the occupation order, creating immediate police response capabilities that provide round-the-clock protection. This will usually be the case if the courts feel the respondent has used violence or threatened to use violence against you or your children, ensuring swift intervention when you need it most.

The power of arrest provision fundamentally changes how your occupation order is enforced. When power of arrest is attached to your occupation order, several crucial protections activate automatically:

• Police can arrest the respondent immediately upon any breach without requiring additional evidence or investigation
• No additional warrants or court applications are required, eliminating dangerous delays in emergency situations
• Officers respond to breach reports as emergency situations with the same urgency as other domestic violence calls
• Arrest powers apply 24/7 throughout the order’s duration, providing consistent protection regardless of time or circumstances

Serious consequences deter violations of occupation orders

If an occupation order is breached, then the respondent can be punished by up to 2 years in prison or face a fine of up to £5,000.00. These penalties apply whether or not power of arrest was originally attached to your order.

Maximising your protection on occupation order

Our experienced family lawyers guide you to ensure your occupation order includes the strongest possible enforcement provisions. We help you understand exactly what constitutes a breach, how to report violations effectively, and what additional legal remedies may be available.

In some circumstances one party may want to consider overturning an occupation order. This is also known as discharging an occupation order. An occupation order is time limited by the court and will usually last for a specified time. Either the applicant or the respondent to the order can consider overturning an occupation order if one or both parties agree that the order is no longer required. When you are looking at overturning an occupation order you will need to make an application to the court.

This application is made by completing the form FL403 which is to vary, extend or discharge an order in existing proceedings therefore one of the requirements is that the order must still be in force. It is strongly recommended that legal advice is sought before pursuing an application as they vary in complexities.

Quite often one partner may look to make a without notice application for an occupation order. In such circumstances the other partner may feel they have not been provided a fair opportunity to present their case. In such instances where a without notice occupation order has been made the courts will list the matter for a hearing. During this hearing the courts will listen to both partners and have the options to make the occupation order and even have the powers for overturning an occupation order which was made without notice.

Occupation orders can have significant impact on one party who has been forced to leave their home and can potentially leave them homeless. This is a key factor the courts will consider when overturning an occupation order. The housing needs and whether any party has access to an alternative property will be taken into account if presented with firm evidence.

The courts will also take into consideration the housing needs of any relevant child when dealing with overturning an occupation order. Therefore if you are a parent who is the resident parent for a child, and you have been subject to an occupation order then you can look to ask the courts to consider your case on the basis of you needing accommodation to support your child. If you would like further assistance with overturning an occupation order then contact us today ahead of your hearing so we can look to assist you in preparing a robust statement. It is extremely important that you present your evidence and submissions in a clear and concise manner which will assist the judge in understanding your needs when dealing with overturning an occupation order.

Why would someone get an occupation order

Courts grant occupation orders when you or children face significant harm from the respondent’s conduct if protection isn’t provided. The balance of harm test requires courts to make orders when potential harm to applicants outweighs consequences to respondents.

What relationship types qualify for occupation order protection

Occupation orders protect spouses, civil partners, cohabitants, former partners, engaged couples, and those with intimate relationships of significant duration. The Family Law Act 1996 defines “associated persons” eligible for protection.

How many hearings for occupation order

Most occupation orders require one initial hearing, though contested cases may need multiple sessions. Emergency without notice applications get immediate hearings, with return dates set for respondents to present their case.

Can I attend occupation order hearings remotely?

Yes, courts accommodate remote attendance for domestic violence cases to ensure safety. Video hearings are available when attending in person would create additional risk or hardship for applicants.

How to respond to an occupation order?

Respondents can contest orders by filing acknowledgment forms, providing counter-evidence, and attending hearings with legal representation. Professional advice is essential to understand rights and present effective defense strategies.

How much does an occupation order cost?

Occupation order applications are free with no court fees. Legal representation costs vary, but legal aid is available for domestic violence cases meeting eligibility criteria. Many family lawyers offer fixed-fee consultations.

Is there free legal advice available for occupation orders?

Yes, initial legal aid assessments, duty schemes, and fixed-fee consultations provide access to professional advice. We offer a free initial consultation if  you would like to get in touch with us.

Can I get legal aid for an occupation order?

Yes, legal aid is available for occupation orders involving domestic violence or immediate harm risks. You need evidence such as police reports, medical records, or letters from support services to demonstrate eligibility.

What if I can’t afford a family lawyer for my occupation order?

Options include legal aid for domestic violence cases, fixed-fee initial consultations, unbundled services for specific tasks, payment plans, and after-the-event insurance. Professional help shouldn’t be financially prohibitive.

How do I report an occupation order breach?

Report breaches immediately to police using 999 for emergencies. Keep detailed records including dates, times, witnesses, and evidence. If your order has power of arrest, police can act immediately.

Is breach of an occupation order a criminal offence?

Breaching an occupation order is not automatically criminal unless power of arrest is attached. However, breaches involving violence, threats, or significant harm may result in imprisonment upon conviction for contempt of court.

What happens if you break an occupation order?

Breaking an occupation order constitutes contempt of court, potentially resulting in up to 2 years imprisonment or fines up to £5,000. With power of arrest, police can arrest immediately; without it, court applications for warrants are required.

Can police enforce occupation orders without power of arrest?

Without power of arrest, police cannot arrest immediately but can gather evidence and support your application for a warrant. Having power of arrest attached provides much stronger immediate enforcement.

What is power of arrest in occupation orders?

Power of arrest allows police to arrest order breakers immediately upon any violation. Courts attach this power when evidence shows violence, threats, or likelihood of immediate harm upon breach.

How do I get power of arrest attached to my occupation order?

Power of arrest is granted when evidence demonstrates history of violence, credible threats, weapon possession, or escalating dangerous behavior. Professional legal help ensures your application includes strongest enforcement provisions.

Can occupation orders be extended?

Yes, occupation orders can be extended before expiry using form FL403. Extensions are typically granted when ongoing protection is needed and circumstances haven’t changed to remove the original need.

How do I cancel or discharge an occupation order?

Either party can apply to discharge an occupation order using form FL403. Courts consider changed circumstances, whether protection is still needed, and impact on all parties including children.

Can occupation orders be appealed?

Yes, occupation order decisions can be appealed to higher courts, but this requires legal grounds and professional representation. Most appeals focus on procedural errors or misapplication of legal tests.

What about occupation orders involving children?

Children’s welfare is paramount in occupation order decisions. Courts prioritize their safety, housing stability, school continuity, and contact arrangements when determining whether to grant orders excluding parents.

Can I combine occupation orders with other legal actions?

Yes, occupation orders often combine with non-molestation orders, child arrangement orders, divorce proceedings, or financial settlement applications. Professional legal advice ensures coordinated strategy across all proceedings.

Can former spouses get occupation orders after divorce?

Yes, former spouses can apply under section 35 of the Family Law Act 1996 even without current property rights. Courts consider marriage length, time since divorce, ongoing financial proceedings, and children’s welfare needs.

What are matrimonial home rights in occupation order cases?

Matrimonial home rights automatically protect married couples and civil partners from exclusion from the family home, regardless of whose name appears on property deeds. These rights strengthen occupation order applications under section 33.

Is it difficult to get an occupation order?

Obtaining occupation orders requires meeting legal tests and providing compelling evidence of harm. Professional representation significantly improves success rates by ensuring proper application preparation and effective court presentation.

What are the alternatives to an occupation order?

Alternatives include voluntary departure agreements, mediation, undertakings to the court, non-molestation orders, or temporary accommodation arrangements. Family lawyer letters can sometimes achieve voluntary compliance without court proceedings.

Would an occupation order show up on DBS check?

Occupation orders don’t automatically appear on standard DBS checks as they’re civil matters. However, associated criminal convictions for breaches or domestic violence may be disclosed depending on the DBS check level required.

Can I sell a house with an occupation order?

Occupation orders don’t prevent property sales but may complicate transactions. Buyers’ lawyers will investigate the order’s impact, and court permission may be needed if sales would affect ongoing proceedings or children’s welfare.

Does an occupation order remove someone from a tenancy?

Occupation orders regulate occupation rights but don’t automatically remove tenancy rights. Joint tenants may still have legal obligations, and landlords should be notified of orders affecting their properties.