Occupation Orders: Legal Rights to Stay in the Family Home

An occupation order is a court order that regulates who may live in, return to or be excluded from the family home in England and Wales. It is a form of injunction under Part IV of the Family Law Act 1996 and is most commonly used in cases involving domestic abuse, separation, divorce or disputes about occupancy rights. These orders can have a profound impact on a person's right to live in the property and are treated as a serious protective legal measure. This article explains how occupation orders work, the legal tests courts use, who can apply, what powers they have, their duration, enforcement and common questions that arise.

What Is an Occupation Order?

An occupation order is a family court order that:

• Determines who can live in the family home.
• Can exclude a person from the home or part of it.
• May regulate or suspend occupancy rights of one or both parties.
• Can restrict the respondent's access to the home and sometimes a surrounding area.

These orders do not affect ownership of the property. They do not change title or conveyance rights but focus on managing residence and presence.

Occupation orders are often sought alongside other protective orders such as non‑molestation orders where domestic abuse is present.

Legal Basis and Applicable Law

Occupation orders are governed by Sections 33 and 35–38 of the Family Law Act 1996. The Act sets out the circumstances in which orders can be made and the tests the court must apply before granting one.

There are different procedural routes depending on the parties' legal entitlement to occupy the home and their relationship:

• Section 33 – for applicants who have a legal entitlement to occupy (e.g., spouse, civil partner, joint tenant).
• Section 35 – for former spouses or former civil partners without a current entitlement.
• Section 36 – for cohabitants or former cohabitants with no legal entitlement.
• Sections 37–38 – for cases where neither party has a legal right to occupy the property.

The court uses different criteria based on the applicable section, but the balance of harm test is central in all cases.

Who Can Apply for an Occupation Order?

To apply for an occupation order, the applicant must generally be an “associated person” with the respondent. This includes:

• People who are married to or in a civil partnership with the respondent.
• Cohabitants or former cohabitants who lived together as a couple.
• Parties who have had an intimate personal relationship.
• Parents of the same child.
• Other family members in some circumstances.

Occupants and former occupants can apply even if they do not own or rent the property, provided they have an associated relationship with the respondent.

How the Court Decides Whether to Grant an Order

Occupation orders can impact fundamental property rights and personal freedoms, so courts apply legal tests before making an order.

Balance of Harm Test

Under Section 33(7) of the Family Law Act 1996, the court must consider the balance of harm:

1. Harm if no order is made – whether the applicant or any relevant child is likely to suffer significant harm attributable to the respondent's conduct if the order is not made.
2. Harm if an order is made – whether the respondent or any relevant child would suffer significant harm if the order is made.

If the applicant's risk of harm outweighs the respondent's risk, the court must make the order; if not, the court can still consider the order under other factors.

Core Criteria Test

Even after the balance of harm is assessed, the court must consider a broader range of factors known as the core criteria:

• Housing needs and resources of both parties and any children.
• Financial resources of parties.
• Likely effect of the order (or refusal) on health, safety and wellbeing of the parties and children.
• Conduct of each party towards the other.

Courts are often reluctant to grant occupation orders unless the circumstances are serious and the balance of harm clearly supports intervention.

Types of Provisions in an Occupation Order

Occupation orders are flexible and can include a range of provisions:

• Right to reside – specify that the applicant may stay in the home.
• Exclusion requirement – require the respondent to leave the home or a defined area such as the street or vicinity.
• Restriction on access – limit when and how the respondent can enter the home or surrounding area.
• Financial and property terms – set out who pays rent, mortgage, bills or maintenance while the order is in place.
• Use of contents and furnishing – govern rights to household items.

Some orders may include a power of arrest if violence or threats of violence are demonstrated, allowing police to arrest the respondent immediately on breach.

Duration of an Occupation Order

There is no fixed duration prescribed by law for all occupation orders. Duration depends on the basis of the application and the circumstances:

• Orders under some sections can be indefinite or time‑limited subject to court direction.
• Some orders under the Act (especially for non‑entitled former partners) can be initially up to six months, with possibility of extension.

The court will tailor the duration to the parties' needs and circumstances, balancing immediate protection with longer‑term resolutions such as divorce or property settlement.

Enforcement and Breach

Occupation orders are civil orders and do not, by themselves, change ownership rights. However:

• If a power of arrest is attached and the respondent breaches the order, the police can arrest them and criminal proceedings may follow.
• If no power of arrest is attached, the applicant can apply for a warrant of arrest or use civil enforcement routes through the court.

Civil enforcement does not carry automatic criminal sanctions, but police involvement and a power of arrest significantly strengthen enforcement.

Practical Considerations

Occupation orders are powerful but not automatic solutions:

• Courts carefully weigh evidence of abuse, risk and harm, especially because these orders can exclude someone from their home.
• Legal representation can help applicants present evidence of risk and articulate why the balance of harm test favours protection.
• Occupation orders are often sought alongside non‑molestation orders to provide both personal and occupancy protection.
• An order does not resolve property disputes or financial settlements; these issues are typically addressed in divorce or civil proceedings.

Common Questions

Can someone apply for an occupation order after separation?
Yes. Former spouses, former civil partners and former cohabitants can apply, even if they no longer live at the property, subject to legal criteria and evidence of need.

Does an occupation order change ownership of the home?
No. It regulates occupation and access but does not alter property title or legal ownership.

Can children be considered in an occupation order?
Yes. Courts consider the welfare of children when deciding whether to grant an order and may include provisions to protect them within its terms.

Key Takeaways

An occupation order is a family court order under the Family Law Act 1996 that enables a court to decide who may reside in the family home, who must be excluded, and how occupancy should be regulated. These orders are primarily used to protect applicants from harm or abuse, especially in domestic abuse situations, by ensuring safety and stability in the home. Applicants must be associated persons under the Act, and courts apply a rigorous balance of harm and core criteria test before granting an order. Occupation orders do not affect legal property ownership but can have significant practical effects on who can live in or access the home, how costs and maintenance are handled, and how enforcement works. They are a vital protective tool in family law but require careful preparation and evidence.