When Can an Occupation Order Be Made?
An Occupation Order infringes on a person’s right to occupy their home, so courts issue such orders only when necessary. The applicant must show they are associated with the respondent. This includes relationships such as:
- Married or civil partners (current or former).
- Cohabitants or former cohabitants.
- Parents of a child together.
- Those in certain family relationships (e.g., siblings, in-laws).
The relevant sections of the Family Law Act 1996 depend on the applicant's and respondent’s status:
- Section 33: For applicants entitled to occupy the property (e.g., as an owner or tenant).
- Section 35: For ex-spouses or ex-civil partners who no longer have a legal entitlement to the property.
- Section 36: For cohabitants or former cohabitants without entitlement.
- Sections 37 and 38: For parties where neither has an entitlement to occupy the property.
Applying for an Occupation Order
An application for an Occupation Order can be made:
- Ex-parte (Without Notice): The respondent is not informed beforehand, typically in urgent situations.
- On Notice: The respondent is notified of the application and given an opportunity to argue their case in court.
The Significant Harm Test
The significant harm test, under Section 33(7) of the Family Law Act 1996, is critical in determining whether an order should be made. The court considers:
- If no order is made, will the applicant or child suffer significant harm attributable to the respondent’s conduct?
- If no, the test is not satisfied, and the court may not make an order.
- If yes, the court moves to step 2.
- If an order is made, will the respondent or a relevant child suffer significant harm?
- If no, the court must issue the order.
- If yes, the court assesses whose risk of harm is greater to decide whether to make the order.
If the significant harm test is not satisfied, the court will consider additional factors under Section 33(6), including:
- Housing needs and availability of alternative accommodation.
- Financial resources of the parties.
- Likely effects of the order on health, safety, and well-being.
- Conduct of the parties toward each other.
Reluctance to Grant Orders
Courts are generally reluctant to issue Occupation Orders unless exceptional circumstances exist. These orders are considered draconian because they can remove a person from their home. However, they may be granted in cases where immediate protection or clarity over occupancy is required.
Breach of an Occupation Order
- Breaching an Occupation Order is not automatically a criminal offence unless a power of arrest is attached to the order.
- A power of arrest is typically included if there is evidence or concern that the respondent has used or threatened violence against the applicant.
Penalties for Breach:
- If a power of arrest is attached, breaching the order can lead to up to two years in prison or a fine of up to £5,000.
- If no power of arrest is included, the applicant must apply for a warrant of arrest, providing evidence of the breach.
Occupation Order or Non-Molestation Order -Which Do You Need?
Many people are unsure which type of order they need. The key difference is this: a Non-Molestation Order protects you from harassment, threats, and abuse, but does not always affect who lives in the property. An Occupation Order determines who can occupy, enter, or remain in the family home.
Most situations call for a Non-Molestation Order, which is significantly easier to obtain, although a Non-Molestation Order can for example stop someone from entering or attempting to enter the home, or going within 100 metres of the home or the road the home is in, even if they have a legal interest in the home. Occupation Orders are considered draconian by the courts because they can remove a person from their own home, and the legal test is correspondingly strict.
You may need an Occupation Order if:
- Someone is preventing you from entering or remaining in the family home
- You need to exclude an abusive partner from the property where children live
- There are serious and immediate safety concerns requiring someone’s removal
- A Non-Molestation Order alone would not provide sufficient protection
The two orders are often applied for together using the same FL401 form. There is no court fee for either application. Family Law Decisions can help you understand which order or combination of orders is appropriate for your situation. Message us on WhatsApp or call 0800 140 4648 for a free consultation.
FAQ: What is the difference between an Occupation Order and a Non-Molestation Order?
A Non-Molestation Order protects you from harassment, threats, and abuse but does not always affect property rights. An Occupation Order determines who can live in or enter the family home. Most situations call for a Non-Molestation Order. The two orders are often applied for together using the same FL401 form.
FAQ: How difficult are Occupation Orders to obtain?
Occupation Orders are among the more difficult family court applications to succeed with. Courts treat them as a serious step because they can remove a person from their own home. You must meet strict legal tests and provide compelling evidence. We can help you understand the relevant criteria and present your application as clearly as possible.
FAQ: What is the significant harm test?
For most applications, the court will consider whether you or a child would suffer significant harm attributable to the respondent’s conduct if no order is made, and weigh that against any harm to the respondent if an order is granted. Understanding how this test applies to your situation is an important part of preparing your application.
FAQ: What happens if the order is breached?
Breaching an Occupation Order is not automatically a criminal offence unless a power of arrest is attached. Where a power of arrest is attached — which is common in domestic abuse cases — police can arrest immediately for a breach. Penalties can include up to two years in prison or a fine of up to £5,000.
FAQ: Is there a court fee for an Occupation Order?
No. There is no court fee for either an Occupation Order or a Non-Molestation Order application.
FAQ: Can I apply for an Occupation Order without notice?
Yes, in urgent situations where there is immediate risk. Without notice applications are scrutinised carefully by the court and result in a temporary order only - a return hearing will be scheduled to allow the respondent to respond. We can help you prepare for both the without notice application and the return hearing.
• Non-Molestation Order
• What is a McKenzie Friend?
• Child Arrangements Order
• Court Fees
How Family Law Decisions Can Help
Family Law Decisions has been supporting people through Occupation Order
applications across England and Wales since 2008. We can help you at every stage of the process.
Application preparation:
• FL401 form: We can help you complete the FL401 application accurately and in full
• Witness statement: We help you structure and draft your witness statement to address the relevant legal considerations clearly
• Draft order: We help you prepare the draft Occupation Order to submit with your application
• Without notice applications: Where immediate risk requires urgent action, we can help prepare an urgent application
Evidence:
• We can help you review and organise your evidence
• We can help you understand what types of evidence are relevant to the significant harm test and how to present what you have clearly
Court attendance:
• McKenzie Friend support at return hearings and contested hearings
• Note-taking and quiet guidance throughout proceedings
• Helping you understand court orders and what they mean
There is no court fee for an Occupation Order application. Family Law Decisions charges fixed fees from £268. Every stage has a fixed fee — no hourly billing, no hidden charges, and no surprises. Message us on WhatsApp or call 0800 140 4648 for a free consultation.
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