By Sital Somaiya, Founder and Solicitor. Last reviewed 14 October 2026.
Key points
- An occupation order decides who can live in the family home for now. It does not decide who owns it.
- You can apply whether you own the home or not, but your rights depend on your relationship and your legal interest in the property.
- In urgent cases the court can make an order the same day, without the other person being told first.
- There is no court fee, and legal aid may be available with the usual financial limits waived.
If living with your partner or former partner has become unsafe or unbearable, you can ask the family court to decide who lives in the home. That is what an occupation order does. It can require someone to leave, keep them away from the property and the streets around it, or let you back in if you have been shut out.
Occupation orders are made under Part IV of the Family Law Act 1996. They sit alongside non-molestation orders, which protect you from abuse and harassment. The two are often applied for together, on the same form.
If you are in immediate danger, call 999. An occupation order protects you once it is made, but it is not a substitute for police help in an emergency. You can also call the free 24-hour National Domestic Abuse Helpline on 0808 2000 247.
In this guide
- What an occupation order can do
- Occupation order or non-molestation order?
- Who can apply
- How the court decides: the balance of harm test
- The evidence that helps
- How to apply, including urgently
- Legal aid
- Frequently asked questions
- Talk to us
What an occupation order can do
The court has wide powers to regulate who lives in a home. An order can:
- Require the other person to leave the home, or part of it
- Stop them returning, or coming within a set distance of the property
- Allow you to return to the home and stay there
- Regulate how the home is shared where both of you remain, for example who uses which rooms
- Declare that you have a right to occupy the home
- Deal with practical matters such as who pays the mortgage, rent or bills while the order lasts
Occupation order or non-molestation order?
| Non-molestation order | Occupation order | |
|---|---|---|
| What it does | Stops violence, threats, harassment and intimidation | Decides who lives in the home |
| Can it remove someone from the home? | No | Yes |
| Is breach a criminal offence? | Yes, up to five years in prison | No, but it is contempt of court |
| Test the court applies | Whether protection is needed for your health, safety and wellbeing | The balance of harm test, or a wider discretion |
| Form | FL401 | FL401 (the same form) |
Many people need both. A non-molestation order stops the abuse, and an occupation order gives you the space to live safely while longer-term decisions are made.
Who can apply
The rules depend on your relationship with the other person and on whether you have a legal right to live in the property. That decides which section of the Act applies, how the court approaches the application, and how long an order can last.
| Your position | Section | How long an order can last |
|---|---|---|
| You own or rent the home, or have home rights as a spouse or civil partner | Section 33 | A specified period, until an event, or until further order |
| Former spouse or civil partner with no right to occupy | Section 35 | Up to 6 months, and can be extended more than once |
| Cohabitant or former cohabitant with no right to occupy | Section 36 | Up to 6 months, and can be extended once |
| Neither of you has a right to occupy | Sections 37 and 38 | Up to 6 months, and can be extended once |
Under section 33 you can apply against anyone you are "associated" with. That includes a spouse, civil partner, current or former partner, a relative, or someone you live or lived with.
If you are married, you have home rights in the matrimonial home even if it is in your spouse’s sole name. Our guide to matrimonial home rights explains how to protect them by registering a notice at the Land Registry, which stops the property being sold or mortgaged without you knowing.
How the court decides: the balance of harm test
For applicants under section 33, the court applies the balance of harm test. If you, or a child living with you, are likely to suffer significant harm caused by the other person’s conduct if the order is not made, the court must make the order. The exception is where the other person, or a child, would suffer harm that is as great or greater if the order is made.
Where the test is not met, the court still has a discretion. It looks at:
- The housing needs and housing resources of each of you and of any children
- The financial resources of each of you
- The likely effect of making or refusing the order on everyone’s health, safety and wellbeing
- How each of you has behaved towards the other and generally
For applicants without a right to occupy, under sections 35 to 38, the court also considers factors such as the length of time since you lived together, and for unmarried couples the nature of the relationship and whether you have children together.
The evidence that helps
Courts treat removing someone from their own home as a serious step, so the quality of your evidence matters. Useful evidence includes:
- Messages, emails and voicemails
- Photographs of injuries or damage to the home
- Police incident numbers and crime reference numbers
- Medical records, GP notes or hospital records
- Letters from a domestic abuse service, school or social worker
- Statements from people who saw or heard what happened
- Evidence of where you and the children could live if you are not in the home
Your solicitor turns this into a witness statement that supports your application.
How to apply, including urgently
Applications are made on Form FL401 with a supporting witness statement. There is no court fee. Most family cases from Romford and Havering are heard at the East London Family Court.
Urgent applications without notice. If telling the other person in advance would put you or the children at risk, or they might act to defeat the order, the court can hear the application without notice and make an order the same day. A further hearing, called the return date, is then listed within days, at which the other person can respond.
Power of arrest. Where the other person has used or threatened violence, the court can attach a power of arrest to parts of the order. The police can then arrest them if they breach it, without needing a warrant.
Undertakings. At the return date, the other person may offer a formal promise to the court, called an undertaking, instead of an order being made. The court will not accept an undertaking where there has been violence or threats of violence and a power of arrest is needed.
An example
Priya and her husband own their home in Hornchurch jointly. After months of shouting, intimidation and one incident in which he broke a door, she is sleeping at her sister’s with their two children. Because she is a joint owner, she applies under section 33 on Form FL401, together with a non-molestation order. Her statement includes photographs of the door, a police reference number and messages he sent her. The court makes both orders without notice and lists a return date the following week. At that hearing the occupation order is continued for six months while the finances are dealt with in the divorce.
This is an illustrative example, not a real case.
Legal aid
Legal aid may be available for occupation and non-molestation orders. For these applications the usual financial eligibility limits can be waived, although you may be asked to pay a contribution depending on your income and capital. Our guide to legal aid where there is domestic abuse explains how it works.
Frequently asked questions
Can I get an occupation order if the house is in my partner’s name?
Often, yes. If you are married or in a civil partnership you have home rights, so section 33 applies in the same way as if you owned it. If you are an unmarried partner with no legal interest in the home, you can still apply under section 36, but orders are shorter and the court weighs the application differently.
How quickly can I get an occupation order?
In an emergency, the same day. The court can hear an urgent application without notice and make an order immediately, with a further hearing a few days later.
Is breaching an occupation order a criminal offence?
Not in itself, unlike breaching a non-molestation order. It is contempt of court, which can lead to a fine or imprisonment. If a power of arrest is attached, the police can arrest the person straight away.
Does an occupation order decide who keeps the house?
No. It decides who can live there for now. Ownership is decided separately, in financial proceedings on divorce or, for unmarried couples, in a property claim.
Can I get an occupation order against a family member who is not my partner?
Yes, in some cases. A relative you live with counts as an associated person, so if you have a right to occupy the home you can apply under section 33.
Sources
- Family Law Act 1996, Part IV, legislation.gov.uk
- Get an injunction if you’ve been the victim of domestic abuse, GOV.UK
- Legal aid, GOV.UK
Talk to us
Signature Law helps people in Romford, across Havering and East London to protect themselves and their children at home. We can act quickly, including on the same day in urgent cases, and we can tell you straight away whether you may qualify for legal aid. See our non-molestation order service, our guide to prohibited steps orders if you are worried about the children, or speak to our family law team in Romford.
Request a callback, or call 01708 398 851.
