Occupation orders

What is an occupation order?

An occupation order is a court order made under Part IV of the Family Law Act 1996 that regulates who may occupy the family home. It can:

• Allow you to remain in (or return to) the home
• Require the other person to leave
• Restrict the other person to certain parts of the property
• Prohibit the other person from coming within a specified distance of the home

Occupation orders are most commonly sought in the context of domestic abuse — where one party needs to be removed from the home for the other’s safety. But they can also be sought in cases of serious relationship breakdown even where abuse isn’t alleged.

Who can apply?

Who can apply — and what tests the court applies — depends on the legal relationship between the parties and their connection to the property.

Spouses and civil partners

Spouses and civil partners have automatic matrimonial home rights under Section 30 of the Family Law Act 1996. This means you have the right to occupy the family home regardless of whether you own it. You can apply for an occupation order whether or not you are on the title deeds.

Former spouses and civil partners

Former spouses and former civil partners can apply, but only within three years of the marriage or civil partnership being dissolved, unless they have a beneficial interest in the property.

Cohabitants and former cohabitants

Cohabitants can apply, but the tests the court applies are different — and the orders available have restrictions (particularly on duration). If you don’t own the property or have a tenancy in your name, your position is more limited.

Others

People with a legal or beneficial interest in the property can also apply in some circumstances — for example, a person who co-owns the home with their partner but is not a spouse.

The “balance of harm” test

Before making an occupation order — particularly one that excludes a legal owner — the court applies a balance of harm test:

The court must make an order if it appears that the applicant or any child is likely to suffer significant harm if the order is not made, and that harm is greater than the harm the respondent would suffer if the order is made.

If this mandatory ground is not met, the court has a discretion to make an order, considering:

• The housing needs and resources of each party and any children
• The financial resources of each party
• The likely effect of making (or not making) the order on the health, safety, and wellbeing of both parties and any children
• The conduct of the parties

How to apply

Form FL401

The application is made on Form FL401 — the same form used for non-molestation orders. You can apply for both orders at the same time on the same form.

There is no court fee for applying.

Without notice applications

Like non-molestation orders, occupation orders can be sought without notice — without telling the other person first — where there is urgency. The court is slightly more cautious about making occupation orders without notice than non-molestation orders, given the significant step of excluding someone from their home, but it will do so where necessary.

Power of arrest

If the court is satisfied that the respondent has used or threatened violence against you or a child, it must attach a power of arrest to the order. This means the police can arrest the respondent without a warrant if they breach the order.

What the order can say

An occupation order can:

• Require the respondent to allow you to occupy the property
• Require the respondent to leave the property
• Prohibit the respondent from entering the property
• Restrict the respondent to certain parts of the property
• Require the respondent to take reasonable care of the property
• Require the respondent to keep up mortgage or rent payments

Duration

Spouses and civil partners — the order can be made for a specified period, extended, or made until further order. There is no fixed maximum.

Cohabitants and former cohabitants — the initial order cannot exceed six months. It can be extended once, for a further six months.

If the order is breached

If there is a power of arrest attached to the order, the police can arrest the respondent without a warrant. The matter is then brought back to court.

If there is no power of arrest, you can apply to the court to commit the respondent for contempt of court for breaching the order.

Legal aid

Legal aid is available for occupation order applications in domestic abuse cases — on the same basis as non-molestation orders. If cost is a concern, check eligibility before assuming you have to fund it yourself.