Occupation Orders Under the Family Law Act 1996: A Practical Guide

Last updated: March 2026

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Quick Answer

An occupation order regulates who may live in the family home. It can require one person to leave or allow another person to return. Occupation orders are made under sections 33 to 38 of the Family Law Act 1996 and are applied for using the FL401 form — the same form used for non-molestation orders. The court applies a "balance of harm" test, weighing the harm to the applicant and any children if the order is not made against the harm to the respondent if it is. Occupation orders are more difficult to obtain than non-molestation orders because they directly affect property rights, but in cases involving domestic abuse they can be essential for the safety of victims and children.

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If You Are in Immediate Danger

National Domestic Abuse Helpline: 0808 2000 247 (free, 24 hours, 7 days a week, run by Refuge)

If you are in immediate danger, call 999. For non-emergency police contact, call 101.

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Introduction

Leaving an abusive home is one thing. Being able to remain in it — or return to it safely — is quite another.

For many people experiencing domestic abuse, the family home is at the centre of everything: it is where the children go to school from, where their support network is, where their possessions are. Being forced to leave that home because of someone else's violence can feel like a second punishment. An occupation order exists to address this injustice. It gives the court power to decide who lives in the home, regardless of who holds the tenancy or whose name is on the mortgage.

The law recognises that property rights, whilst important, must sometimes yield to the safety of individuals and children. Sections 33 to 38 of the Family Law Act 1996 set out a detailed framework for occupation orders, with different provisions depending on the applicant's legal relationship to the home. This guide explains who can apply, what the court considers, and how to prepare an effective application.

According to the Ministry of Justice, occupation orders are sought less frequently than non-molestation orders, and they are granted less readily. The courts treat them as significant interventions. But where the evidence justifies it — particularly where children are at risk — they remain a powerful tool for protection.

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Who Can Apply for an Occupation Order?

Your eligibility to apply, and the specific section of the Act under which your application falls, depends on two things:

1. Your relationship with the respondent — whether you are an associated person under section 62 of the Family Law Act 1996
2. Your legal interest in the property — whether you have a right to occupy the home (as owner, tenant, or beneficial owner) or whether you are a non-entitled applicant

The Key Sections

Understanding "Entitled" vs "Non-Entitled"

An entitled applicant is someone who has a legal right to occupy the dwelling-house — typically because they are the owner, joint owner, tenant, or joint tenant. This also includes anyone who has a beneficial interest in the property (for example, through financial contributions to the purchase price even if not named on the title).

A non-entitled applicant is someone who has no independent legal right to occupy the property. For example, a former partner who never had their name on the tenancy agreement and has no beneficial interest. Non-entitled applicants can still obtain occupation orders, but the provisions available to them are more limited and the orders are subject to time limits.

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What Can an Occupation Order Do?

The powers available to the court vary depending on which section applies, but broadly an occupation order can:

• Require the respondent to leave the dwelling-house or part of it
• Prohibit the respondent from entering the dwelling-house or a defined area around it (an exclusion zone)
• Allow the applicant to enter and remain in the dwelling-house
• Require the respondent to permit the applicant to enter and remain
• Regulate the occupation of the dwelling-house — for example, allowing both parties to remain but in separate parts of the property
• Impose obligations regarding repair, maintenance, and payment of rent or mortgage

The Exclusion Zone

A particularly important power is the ability to exclude the respondent not just from the property but from a defined area around it. This is especially relevant where the applicant is concerned that the respondent will loiter outside, watch the property, or approach the applicant when they leave the home.

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The Balance of Harm Test

The balance of harm test is central to occupation order applications, particularly under section 33.

Section 33(7): The Mandatory Test

Under section 33(7), if it appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to the respondent's conduct if the order is not made, the court must make the order unless:

• The respondent or any relevant child is likely to suffer significant harm if the order is made, and
• That harm is as great as or greater than the harm to the applicant or child if the order is not made

This is a mandatory provision. If the applicant crosses the threshold of likely significant harm and the respondent cannot demonstrate equal or greater harm, the court must make the order. There is no discretion.

The Discretionary Factors

Where the mandatory test is not engaged — or where it is but the court is weighing harm on both sides — the court also considers the following discretionary factors under section 33(6):

• The housing needs and resources of each party and any relevant child
• The financial resources of each party
• The likely effect of making or not making the order on the health, safety, or well-being of each party and any relevant child
• The conduct of the parties towards each other and otherwise

Practical Application

In domestic abuse cases, the balance of harm test often works in the applicant's favour. The harm to a victim of domestic abuse who is forced to remain in or return to a home with their abuser is, by its nature, significant. Courts have recognised that psychological harm from coercive and controlling behaviour can constitute significant harm for the purposes of this test, not just physical violence.

However, courts also consider the respondent's position. If the respondent has nowhere else to go and has health problems, for example, the court will weigh this. The question is always whether the harm to the respondent outweighs the harm to the applicant and any children.

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Duration of Occupation Orders

The duration depends on the section under which the order is made:

The time limitations for non-entitled applicants reflect Parliament's view that these orders represent a significant interference with the respondent's property rights and should be time-limited to encourage a longer-term resolution, such as finding alternative housing.

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Applying for an Occupation Order

The FL401 Form

You apply for an occupation order using the FL401 form, the same form used for non-molestation orders. You can apply for both on the same form. The form asks you to specify:

• The address of the dwelling-house
• Your interest in the property (owner, tenant, beneficial interest, or no interest)
• The respondent's interest in the property
• Whether there are any children living at the property
• What order you are seeking

Your Witness Statement

Your witness statement must address both the domestic abuse and the property situation. Specifically:

On the abuse:

• A chronology of the abuse, with specific incidents
• The impact on you and any children
• Why you need the protection of an occupation order

On the property:

• Your connection to the property (how long you have lived there, whether you contributed to the purchase or rent)
• The respondent's connection to the property
• Who else lives there, particularly children
• Your housing alternatives — where you would go if the order is not made
• The respondent's housing alternatives — whether they have somewhere else to stay
• Financial circumstances relevant to housing

On the balance of harm:

• What harm you and any children would suffer if the order is not made
• Why that harm is significant
• What harm, if any, the respondent would suffer if the order is made

Property Documents

Unlike a non-molestation application, an occupation order application typically requires property-related evidence:

• Land Registry title register — showing ownership
• Tenancy agreement — if the property is rented
• Mortgage statements — showing the mortgage holder and outstanding balance
• Evidence of financial contributions — if you are claiming a beneficial interest

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Enforcement

An occupation order is enforceable by the police if the court attaches a power of arrest under section 47 of the Family Law Act 1996. The court must attach a power of arrest if it appears that the respondent has used or threatened violence against the applicant or a relevant child, unless the court is satisfied that the applicant or child will be adequately protected without it.

If a power of arrest is attached, a police officer may arrest without warrant any person whom they have reasonable cause for suspecting of being in breach of the order. The arrested person must be brought before a judge within 24 hours.

If no power of arrest is attached, enforcement is by way of committal proceedings (contempt of court), which requires the applicant to apply to the court.

Note that unlike non-molestation orders, breach of an occupation order is not automatically a criminal offence. The criminal offence under section 42A of the Family Law Act 1996 applies only to non-molestation orders. This is one reason why applicants often apply for both orders together — the non-molestation order provides criminal law protection for behaviour, whilst the occupation order addresses the living situation.

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Preparing Your Bundle

A well-prepared bundle is particularly important for occupation order applications because the court is being asked to make a decision that affects property rights. The judge needs to see not only the evidence of abuse but also the evidence relating to the property and each party's housing situation.

Recommended Bundle Structure

1. Application form — FL401 (fully completed, specifying the occupation order sought)
2. Draft order — setting out the specific terms
3. Applicant's witness statement — covering abuse, property, and balance of harm
4. Chronology — key incidents and key property events
5. Property documents — title register, tenancy agreement, mortgage statements
6. Evidence of abuse — police reports, medical records, messages, photographs
7. Housing evidence — any correspondence with local authority housing services, refuge availability
8. Financial information — relevant to housing resources and needs
9. C8 confidentiality form — if applicable

All documents should be paginated consecutively and indexed in accordance with Practice Direction 27A.

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How BundleCreator Can Help

Occupation order applications require a more complex bundle than a straightforward non-molestation application. You need to present two interlinked cases — one about the abuse and one about the property — in a format that is clear, properly structured, and easy for the judge to navigate.

BundleCreator provides:

• FL401 bundle templates — with dedicated sections for both non-molestation and occupation order evidence
• Property evidence sections — structured tabs for Land Registry documents, tenancy agreements, and financial evidence
• Guided witness statement templates — with prompts for the balance of harm test and property-specific information
• Automatic pagination and indexing — ensuring your bundle complies with Practice Direction 27A even as you add or reorganise documents
• Secure document storage — your sensitive evidence and financial documents are encrypted and accessible only to you

Whether you are a litigant in person or a legal professional preparing a bundle for a client, having a structured template saves time and reduces the risk of omitting critical information.

Start building your occupation order bundle at BundleCreator.co →

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Getting Help

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Frequently Asked Questions

Can I get an occupation order if I am not on the tenancy or mortgage?

Yes. Sections 35, 36, 37, and 38 of the Family Law Act 1996 specifically provide for non-entitled applicants — people who have no independent right to occupy the property. However, the orders available are more limited and are subject to time restrictions. The court will still apply the balance of harm test.

Can I apply for an occupation order and a non-molestation order at the same time?

Yes. Both are applied for on the same FL401 form, and it is common to seek both orders together. The non-molestation order protects you from specific behaviour; the occupation order addresses who lives in the home. Together they provide comprehensive protection.

How long does it take to get an occupation order?

If you apply without notice (in urgent cases), the court may consider the application on the same day or the next working day. If the application is on notice, the first hearing is typically listed within a few weeks. The court may make an interim occupation order at the first hearing or list a contested hearing if the respondent opposes the application.

Will I have to pay the respondent's rent or mortgage if they are excluded?

The court has power to impose obligations regarding rent, mortgage, and repair costs as part of the occupation order. The court may require the person remaining in the property to continue paying the rent or mortgage, or may make other financial arrangements. This will depend on the financial circumstances of both parties.

Can an occupation order be made in respect of a council or housing association property?

Yes. Occupation orders apply to all types of dwelling-house, including council and housing association properties. The tenancy itself is not affected by the occupation order — it remains in the name of the tenant. However, the order can require the tenant to leave and permit the non-tenant to remain in occupation.

What happens when the occupation order expires?

If the order expires and no longer-term solution has been found, the applicant loses the right to occupy the property (unless they have an independent right of occupation). It is important to use the period of the order to seek legal advice about longer-term options — such as a transfer of tenancy, a property adjustment order in divorce proceedings, or an application to the local authority for housing.

Can the respondent apply to have the occupation order discharged?

Yes. The respondent can apply to the court to vary or discharge the occupation order at any time. The court will reconsider the balance of harm test in light of any change in circumstances. If the respondent can demonstrate that their circumstances have changed significantly — for example, that they have completed a domestic abuse perpetrator programme and the risk has reduced — the court may vary or discharge the order.

Is legal aid available for occupation order applications?

Legal aid is generally available for domestic abuse cases, including occupation order applications, subject to the evidence gateway. You will need to provide evidence of domestic abuse. Contact the Legal Aid Agency or a solicitor who accepts legal aid to check your eligibility.

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This article provides general legal information and is not a substitute for legal advice. If you are at risk, please contact the National Domestic Abuse Helpline on 0808 2000 247 (free, 24 hours, 7 days a week). Legal aid may be available for your application — contact the Legal Aid Agency or Citizens Advice for further guidance.

Sources: Family Law Act 1996, sections 33–38, 42, 47, 62; Domestic Abuse Act 2021; Ministry of Justice, Family Court Statistics Quarterly (2024); Practice Direction 27A; Shelter Housing Advice.