What is an occupation order, and how is it different from a non-molestation order

An occupation order is a court order under the Family Law Act 1996 that regulates who can live in the family home — it can require someone to leave the property, allow you to return if you've already left, or restrict which parts of the property each of you can use. It is a different type of protection from a non-molestation order, which stops someone from being violent, threatening, or abusive towards you rather than deciding who lives where. The two orders are often applied for together, since domestic abuse situations frequently involve both a safety concern and a housing dispute.

Who can apply for an occupation order?

You need a specific relationship to the respondent, and generally a legal connection to the property, though the exact requirements differ depending on which section of the Act your application falls under:

1. You have a legal right to the property — as an owner or tenant, sole or joint — and are or were married to, in a civil partnership with, or cohabiting with the respondent.
2. You don't have a legal right to the property, but you are or were married to, in a civil partnership with, or cohabiting with someone who does have that right — this covers situations where the home is solely in your partner's name.

You must be an "associated person" in relation to the respondent, meaning you're married, were married, cohabit or cohabited, have a child together, or have had an intimate relationship of significant duration, among other categories set out in the Family Law Act 1996.

What can an occupation order actually require?

Depending on your circumstances, the order can:

1. Require the respondent to leave the home, or a defined part of it.
2. Prohibit the respondent from entering the home, or the surrounding area.
3. Allow you to return to the home, if you've already left because of the respondent's behaviour.
4. Regulate the property's occupation between you both, if you're both remaining there for now.

The order will usually also set out who's responsible for the mortgage, rent, and other outgoings while it's in force.

How is this decided — what test does the court apply?

The court uses what's known as the "balance of harm" test, set out in section 33(7) of the Family Law Act 1996. It weighs up the harm the applicant, respondent, and any children are likely to suffer if the order is made against the harm they're likely to suffer if it isn't. The court will typically consider:

1. The housing needs and resources of each party, and of any children.
2. The financial resources of each party.
3. The likely effect of the order, or of not making it, on the health, safety, and wellbeing of everyone involved.
4. The conduct of each party in relation to each other and the property.

Where the court finds the applicant or a child is likely to suffer significant harm if the order isn't made, it will generally make the order unless the respondent, or a relevant child, would suffer equal or greater harm as a result.

How long does an occupation order last?

Most occupation orders are made for around six months initially, though this depends on which section of the Act applies and the specifics of the case. They can be extended by further application if the circumstances haven't changed. This is shorter than a typical non-molestation order, which commonly runs for six to twelve months.

What's the actual difference between an occupation order and a non-molestation order?

They address different problems, though they're both applied for using the same form.

1. A non-molestation order stops the respondent from using or threatening violence, harassing, intimidating, or pestering you or your children — whether in person, by phone, in writing, or through social media. See our guide on what is a non-molestation order.
2. An occupation order deals specifically with who lives in, or is excluded from, the family home — it doesn't, by itself, stop someone contacting or threatening you if you're no longer sharing a property.

Because they solve different problems, many people experiencing domestic abuse apply for both together — for example, a non-molestation order to prevent contact and harassment, alongside an occupation order to remove the abuser from the home so it's safe to stay there.

How do I apply?

1. Complete form FL401, which covers both non-molestation and occupation order applications, and file it with the court along with a supporting witness statement setting out what's happened.
2. There is no court fee for either application.
3. The application must reach the respondent before the hearing, unless you're applying urgently without notice, which the court will only allow in exceptional circumstances given the seriousness of excluding someone from their home.
4. The court will list a hearing, usually held in private, with only the applicant, respondent, and any legal representatives present.

What happens if the order is breached?

Unlike a non-molestation order, breaching an occupation order is not automatically a criminal offence unless a "power of arrest" has been specifically attached to it — this is usually attached where there's a concern the respondent has used or threatened violence. Where a power of arrest is attached, the police can arrest the respondent without needing a warrant if they breach the order.

Deciding which protective order fits your situation, and putting together a clear witness statement, is difficult to do alone while you're dealing with an unsafe living situation. Access to Justice is built for exactly this — it explains your options in plain English and helps you prepare. Try it free.

Frequently asked questions

Do I need to already own or rent the property to get an occupation order?

Not necessarily — you can still apply if you're married to, in a civil partnership with, or cohabiting with someone who has that legal right, even if the property isn't in your name. You must also be an "associated person" in relation to the respondent, as defined in the Family Law Act 1996.

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

Yes, using the same form FL401, and this is common in cases involving domestic abuse where both protections are needed — for example, a non-molestation order to prevent contact and harassment, alongside an occupation order to remove the abuser from the home so it's safe to stay there. There is no court fee for either.

Will an occupation order affect my ex-partner's ability to see our children?

Not directly — an occupation order regulates who lives in the property, not contact arrangements with children, which are dealt with separately through a child arrangements order if needed. The order can, though, set out who is responsible for the mortgage, rent, and other outgoings while it is in force.

Is legal aid available for an occupation order application?

Yes, potentially, and the means test is less strict for injunction applications like this compared with most other family cases — see our guide on can I get legal aid for a family court case. Whether you qualify still depends on your finances, so it's worth checking your eligibility before you apply.

Can an occupation order be made urgently, without telling the other person first?

Yes, in exceptional circumstances, though courts have become more cautious about making occupation orders without notice, given how significant it is to exclude someone from their home without them first being heard. Normally the application must reach the respondent before the hearing, and a without-notice order is very much the exception.

What if I don't have any legal right to the property at all — no tenancy, no ownership?

You may still be able to apply if you're an associated person under the Family Law Act 1996 — for example, if you're married to, in a civil partnership with, or cohabiting with someone who does have that legal right — though your rights and the type of order available can differ depending on your exact relationship to the property and the respondent.

Can an occupation order be extended beyond its initial period?

Yes, you can apply to extend it if the circumstances that justified the order haven't changed, though this requires a further application rather than happening automatically. Most occupation orders are made for around six months initially, so if you still need protection after that, apply in good time before it expires.

This article provides legal information about occupation orders in England and Wales. It does not constitute legal advice. For advice about your specific situation, speak to a qualified solicitor.