Can I get an Occupation Order?

If you feel unsafe in your own home because of a partner or former partner, an occupation order may help protect you and your family. An occupation order is made under the Family Law Act 1996 and can determine who is allowed to live in the family home.

In some circumstances, the order can require another person to leave the property, even if they own or rent it. Applications are made using form FL401, and there is no court fee for applying.

An occupation order deals with who can live in a property and, where necessary, which areas of the home each person can use. Depending on the circumstances, it may prevent someone from entering the property, require them to move out, or allow you to return to your home.

It is important to understand that an occupation order does not decide who owns the property. Ownership and tenancy rights remain separate from the order.

You may also hear people refer to an “occupancy order” or “occupational order”. These are generally incorrect terms for an occupation order.

You could consider applying if your living arrangements have become unsafe because of the behaviour of a partner, ex-partner or another person who lives with you.

This may include situations involving:

• Domestic abuse or concerns about your personal safety.

• Leaving your home because you are frightened and wanting to return.

• Threatening, intimidating or controlling behaviour.

• Harassment or behaviour affecting your children's wellbeing.

• Physical violence is not always necessary. The court can consider other forms of abusive behaviour, including coercive control, threats, emotional abuse and financial abuse.

Occupation orders are generally available to people who are considered “associated persons”. This can include married couples, civil partners, current or former cohabitants, certain family members and people who have lived together as a couple.

Which part of the Family Law Act applies will depend on your circumstances and your legal connection to the property. For example, section 33 generally applies where you have a legal right to occupy the home, while sections 35 and 36 can apply in certain circumstances where you do not currently have that right.

The court looks at the circumstances of each case when deciding whether an order is appropriate. For applications under section 33, this includes the balance of harm test.

The court can consider whether you or a child could suffer significant harm if no order is made, alongside the potential impact on the other person.

Other factors can include:

• Housing requirements and available accommodation.

• Financial circumstances.

• Health, safety and wellbeing.

• The behaviour of both parties.

• The welfare of any children.

There is no single type of evidence required. Depending on your circumstances, useful information may include police reports, medical records, photographs, witness accounts, abusive messages or emails, and a diary documenting incidents.

A supporting witness statement can bring this information together and explain why an occupation order is needed.

An application is made using form FL401, together with supporting evidence and a witness statement. There is no court fee, although you may have legal costs if you instruct a solicitor.

Legal aid may also be available in some domestic abuse cases, subject to the relevant eligibility requirements.

Yes. If there is an immediate risk of significant harm, you may be able to make an application without first notifying the other person. In appropriate circumstances, the court can deal with urgent applications quickly.

Where violence has been used or threatened, a power of arrest may also be attached to an occupation order.

The length of an order depends on the circumstances and the legal section under which it is made. Some orders can remain in force for a specified period or until further order, while orders under sections 35 and 36 are often limited to six months, with extensions potentially available where required.

These orders have different purposes. A non-molestation order is intended to protect someone from violence, threats, harassment or intimidation. An occupation order focuses on who can live in or access the family home.

In some situations, both forms of protection may be appropriate.

At Haris Law Solicitors, we can advise you on your circumstances, help establish whether an occupation order may be suitable, prepare the necessary application and supporting statement, and provide legal representation where required.

If you are concerned about your safety at home and need advice, contact Haris Law Solicitors on 01254 461461 to arrange a free, no-obligation 30-minute consultation.