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Family law guide
Part of: Non Molestation Order
An occupation order is a powerful legal tool that determines who can live in your family home during domestic disputes. Many people following a divorce often enter into a dispute with regards to who will have access to the matrimonial home and who will not. Occupation orders attempt to tackle the issues surrounding the matrimonial home and allow the court to make a decision with regards to living in the matrimonial home.
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:
This housing injunction is granted in serious circumstances as it can exclude someone from the home they are legally entitled to occupy. It regulates occupation of the home but does not deal with ownership of the property.
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 behavioural and spatial aspects of domestic abuse.
This combination proves particularly powerful because it:
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:
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 or a beneficial interest 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, husbands, 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:
If your partner owns the property:
For rental 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:
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 are set out in different sections of the Family Law Act 1996.
You may apply for an occupation order under section 33 if you are legally entitled to occupy the property by virtue of a beneficial estate or interest, 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. The section used depends on the applicant’s relationship to the respondent and whether either party has occupation rights.
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 considers two tests when deciding whether to grant an occupation order. 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 other party 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, for example the core criteria to be considered under S.33 (6) are:
If the applicant is not entitled to an occupation order but is a spouse or former spouse of the respondent, often after the relationship breakdown, then the court may have regard to some additional factors. These additional factors of the core criteria test are:
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:
When applying for an order you must satisfy the three requirements which are:
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:
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 maximise 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 favour.
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:
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 defences.
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:
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.
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.
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.
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.
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.
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.
Respondents can contest orders by filing acknowledgement forms, providing counter-evidence, and attending hearings with legal representation. Professional advice is essential to understand rights and present effective defence strategies.
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.
We offer a free initial consultation if you would like to get in touch with us.
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.
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.
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.
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.
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.
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.
Power of arrest is granted when evidence demonstrates history of violence, credible threats, weapon possession, or escalating dangerous behaviour. Professional legal help ensures your application includes strongest enforcement provisions.
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.
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.
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.
Children’s welfare is paramount in occupation order decisions. Courts prioritise their safety, housing stability, school continuity, and contact arrangements when determining whether to grant orders excluding parents.
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.
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.
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.
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.
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.
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.
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.
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.
Occupation orders can often be useful where you or your child are likely to suffer from harm. They can equally be harmful to the person subject to them who may need defending.
If you would like more advice on whether you are able to make an application order or want to find out what is involved with an occupation order then contact us today on 0330 094 5880 to discuss your options or let us call you back.
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