1. Introduction
Following the breakdown of a cohabiting relationship, questions of living arrangements must be resolved: who is entitled to stay in the home, and can that person make their ex-partner move out? These issues are particularly pressing in cases where the relationship has become high-conflict or unsafe.
Where the couple cannot agree on living arrangements, the family court can grant an injunction known as an occupation order, under Part IV of the Family Law Act (FLA) 1996. This court order regulates the occupation of the family home by determining who may live in the property and who may be excluded from it. An occupation order can grant a right of occupation to a party even if they are not the legal owner or tenant of the property.
This article provides a practical overview of how occupation orders work and what factors the court considers in deciding whether to make an order.
2. Scope of an occupation order: an interim measure
An occupation order is not available simply because living together has become unpleasant. The court reserves these orders for cases where intervention is genuinely necessary, most commonly where there has been domestic abuse, harassment, or a serious risk of harm. This is because the exclusion of someone from their own property is a very serious measure, so the court takes a cautious approach. In Chalmers v Johns [1998] EWCA Civ 1452, the court confirmed that such intervention is “[d]raconian, particularly in the perception of the respondent” because it is “an order that overrides proprietary rights and … is only justified in exceptional circumstances”. The threshold for making an occupation order is therefore high and the intervention must be proportionate. In PF v CF [2016] EWHC 3117 (Fam) at [27], the High Court affirmed that it “must impose the least interventionist order necessary to achieve the object of protecting the applicant, and it is only where an order regulating the occupancy of the property would be insufficient to protect the applicant that the court is entitled to make an order excluding the respondent from the property altogether.” In short, the court will go no further than is necessary to keep the applicant safe.
Even where that threshold is met, the law treats an occupation order as a temporary “stop-gap”; it grants time and safety to the parties while they sort out their longer-term living arrangements. Occupation orders do not determine who owns the legal interests in a property, nor do they determine how the property may be divided as an asset. Such matters are dealt with through financial remedy proceedings (for married couples), or TLATA proceedings (for unmarried cohabitants).
For a broad overview of financial remedy proceedings, see our related article: A Guide to Financial Remedy Proceedings.
For more detail on how the family home is treated after a divorce, see our article: Non-Matrimonial Assets in Divorce: Can inheritance, gifts and pre-marital property be protected?
3. How an occupation order works
The court can control, restrict, or terminate a party’s existing right to occupy the property. In practice, an order often involves simultaneously allowing one party to remain in the property while requiring the other to leave.
The court also tailors the scope of the order. Depending on what is necessary and practical, the order might declare or restrict rights to the whole property, or it may be a zonal order. For example, it might:
- declare that a party has a right to stay in the property, but restrict access to a certain part of it, such as the other party’s bedroom; or
- prevent the excluded party from entering a defined radius, such as 100 metres, around the home.
The court can thus tailor an occupation order to the level of protection the case requires.
4. Who can apply for an occupation order
Before considering the merits of the application, the court must first be satisfied that two legal requirements are met:
- the applicant (the person applying for the order) and the respondent (the person the applicant is applying for an order to be made against) must be “associated” persons, as defined in sections 62−63 of the Family Law Act 1996. Broadly, this covers those who are in or were in an intimate personal relationship; and
- the property must currently be, have previously been, or have been intended to be the parties’ shared family home.
5. Applicant’s connection to the property
A person can apply for an occupation order as an “entitled applicant” under section 33 of the Family Law Act 1996, if they have:
- a legal or contractual interest in the property; for example, if their name is listed as the sole or joint owner or tenant; or
- home rights, which will be the case if they are married to the sole owner of the property and are currently occupying it as their matrimonial home, despite not themselves being the legal owner or tenant.
If an applicant does not fit into the above criteria, they may be able to apply as “non-entitled applicants” under sections 35−38 of the Family Law Act 1996. This encompasses applicants who share or intended to share the home with the owner or tenant based on their relationship. Typical examples include former spouses or civil partners of the legal owner, or unmarried cohabiting couples.
6. How the court decides: the two legal tests
In determining whether to grant an occupation order, the court applies statutory tests.
The court first applies the “balance of harm” test, laid out in section 33(7) of the Family Law Act 1996. The court must ascertain whether the applicant or a relevant child is likely to suffer “significant harm” attributable to the respondent’s conduct if the order is refused. If the court identifies such likelihood, it must make the order. The only exception to this mandatory requirement is where the respondent or a relevant child would suffer equal or greater harm were the order to be made; in such a case, the court uses its discretion to determine whether to proceed with an order. In practical terms, the court asks one central question: who is most likely to suffer significant harm if no order is made?
If the court answers the “balance of harm” question in the negative (i.e. where the threshold for “significant harm” is not met), the court retains a discretionary power to grant an order under section 33(6) of the Family Law Act 1996. Under this test, the court must exercise a broad discretion having regard to all the circumstances of the case, particularly the following factors which are set out in the statutory checklist:
- housing needs and resources, including the availability and suitability of alternative accommodation for both parties;
- the financial resources of each party, including their financial capacity to secure alternative accommodation;
- the likely impact on the health, safety, and wellbeing of both parties and any relevant children if the order were to be made or refused; and
- the general conduct (i.e. behaviour) of the parties toward one another throughout the relationship and proceedings.
No single factor in the above list is decisive. The court considers the overall picture.
While the threshold for intervention remains high, the framework for assessing harm is broad, as outlined in section 63 of the Family Law Act 1996. In Re L (Children) [2012] EWCA Civ 721, the Court of Appeal confirmed that neither physical harm nor reprehensible conduct is required to justify an occupation order. The court considers all the circumstances, including factors such as serious psychological distress.
Where minor children are involved, their welfare is a central consideration; the court is unlikely to see it as in the child’s best interests to remain in a high-conflict and hostile home environment.
7. Emergency “without notice” applications
Where there is an urgent need to secure an occupation order, due to factors like an imminent threat to safety or a risk of homelessness, the applicant can apply to the court “without notice” (or “ex parte”). Without notice applications are exceptional because the court normally expects both parties to be heard before making an order.
The without notice mechanism enables the applicant to secure a temporary interim order before the respondent is notified that legal proceedings have been initiated. It seeks to prevent escalated risk to the applicant in the time between their filing the application and being granted an order. The interim order protects the applicant until a return hearing is listed, at which both parties can present their evidence.
As a without notice application does not allow the respondent to present their case in the short term, the court enforces a high threshold for without notice orders. It balances the need for urgent protection of the applicant against the respondent’s rights. In DS v AC [2023] EWFC 46 at [24], the court confirmed that there must be a “risk of significant harm” for a without notice order to be made.
8. Non-molestation orders and undertakings
Occupation orders are often sought alongside another injunction known as a non-molestation order. The two serve different purposes. One regulates occupation of the home; the other regulates behaviour.
Whereas an occupation order regulates rights to the property, a non-molestation order prevents the respondent from harassing or abusing the applicant. The applicable behaviour is not restricted to violence; in C v C [2001] EWCA Civ 1625 at [22], the Court of Appeal confirmed that molestation “applies to any conduct which can properly be regarded as such a degree of harassment as to call for the intervention of the court”.
It is common for occupation orders and non-molestation orders to be made in tandem. Alternatively, the court may decide against an occupation order but instead order a zonal non-molestation order, which defines exclusion zones around the property.
In other cases, the proceedings may be resolved through an undertaking, which is a formal promise to the court to do, or refrain from doing, specific actions. While this can be effective in lower-risk cases, undertakings are usually inadequate in high-risk cases. For example, where there has been violence or threatened violence towards the applicant, the court will generally not accept an undertaking.
9. Breach and enforcement of occupation orders
An occupation order is a court order, not a request. Breaching it can amount to contempt of court, which can result in a fine, or a custodial sentence. However, as an occupation order is a civil remedy rather than a criminal conviction, non-compliance does not automatically permit arrest. If a breach occurs, the applicant has to apply to court for a warrant of arrest and must evidence the breach.
However, the court may attach a Power of Arrest to the occupation order under section 47 of the Family Law Act 1996. Where this is attached, the breaching party can be arrested without a warrant.
10. How we can help
Every occupation order case turns on its own facts. Success often depends on acting quickly, identifying the correct legal test, and presenting persuasive evidence. Our family barristers advise and represent clients from the first application through to the final hearing, including:
- Advice and strategy: clear and practical guidance on the strength of your case, likely outcomes, and the best way to resolve the matter.
- Drafting: preparation of Form FL401 applications, witness statements, and supporting evidence.
- Representation: expert advocacy at all court hearings, including without notice (“ex parte”) hearings.
We work with clients on a direct access basis. This means you can instruct our barristers directly without going through a solicitor. This can save time and reduce costs, while still giving you access to specialist support. Find out more about our direct access offering here.
We represent clients in London, Birmingham, Milton Keynes, Northampton, Bedford, Luton, and across the UK.
You can contact us to book an initial consultation.
11. About us
Billal Malik is a barrister practising in family law, with extensive experience in children and financial remedy proceedings, particularly those with an overseas or immigration element.
12. Frequently asked questions
How long does an occupation order last?
If an occupation order is granted under section 33 of the Family Law Act 1996, it can be made for a specific period (typically 6−12 months), or until a specific event occurs (for example, until divorce is finalised). An order can also be made indefinitely. However, in Manjra v Shaikh [2020] EWHC 1805 (Fam), the High Court confirmed that an order can only be made for an unlimited time in exceptional cases.
Can an occupation order affect who owns the house?
No. An occupation order is an interim protective mechanism used to regulate interim living arrangements; it has no legal impact on underlying property ownership.
Separate proceedings determine matters such as legal or equitable interests in the home, which party can live in the property long-term, and the division of the proceeds of sale. For married couples, these are financial remedy proceedings; for unmarried couples, these are TLATA proceedings.
Who pays the mortgage or rent once an occupation order is made?
Under section 40 of the Family Law Act 1996, the court can attach ancillary financial orders to an occupation order. These may determine who pays the mortgage, rent, or maintenance and repair costs. Such obligations are ongoing until the occupation order ends.
Exclusion from the property does not automatically release a party from their financial responsibilities. However, the court will consider each party’s financial resources before making these ancillary orders.
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