An occupation order regulates who can live in a home. It can require you to leave, stop you returning, restrict you to part of the home, or keep you a set distance away. Applications are made on the same FL401 form as non-molestation orders, and the two are often sought together.
Order or application? Check what you've been served with
- An application with a hearing date, no order yet: you have the right to make representations in writing or orally at the hearing. Prepare your response now.
- An order made without notice: less common for occupation orders because excluding someone from their home is so serious. A return hearing must be fixed so you can be heard.
- An order made after a hearing: you can apply to vary or discharge it if circumstances change, or consider an appeal (strict time limits).
Entitled or non-entitled? Why it matters
The law treats applicants differently depending on their rights to the property:
| Applicant's position | Section of the Family Law Act 1996 | What it means for you |
|---|---|---|
| Owns or rents the home, or has "home rights" (e.g. married/civil partner) | s.33 ("entitled" applicant) | The court must apply the balance of harm test. Orders can last for a specified period or until further order. |
| Former spouse/civil partner with no legal right to occupy | s.35 | Limited to 6 months, extendable for further 6-month periods. |
| Cohabitant / former cohabitant with no legal right to occupy | s.36 | Limited to 6 months, extendable once for 6 months. |
| Neither party entitled to occupy | ss.37–38 | Limited to 6 months, extendable. |
If the applicant has applied under the wrong section, or overstated their rights, raise this in your response.
The balance of harm test
For entitled applicants, the court must make an order if the applicant or a child is likely to suffer significant harm attributable to your conduct if no order is made, unless you or a child would suffer harm as great or greater if the order is made. For other applicants, the court weighs the balance of harm alongside other factors.
What the court considers
- The housing needs and housing resources of each party and any children
- Financial resources of each party
- The likely effect of an order (or no order) on the health, safety and wellbeing of everyone involved
- The conduct of the parties towards each other
Evidence to gather as a respondent
- Proof of your housing position: ownership, tenancy agreement, mortgage, who pays what
- Evidence of where else you (and the applicant) could realistically live
- Your health, disability, work and caring needs, and how exclusion would affect them
- Your children's needs and arrangements (schools, care, contact)
- Evidence responding to the allegations of conduct (messages, witnesses, police records)
Landlords and mortgage lenders
For applications under ss.33, 35 or 36, the court rules require the applicant to serve the application on any mortgage lender and landlord, who can make representations. If you're worried about rent or mortgage payments while excluded, ask the court to deal with outgoings: it has powers to make orders about repairs, rent, mortgage and other outgoings.
Practical requests you can make
- Time to leave and collect belongings, medication, work equipment and documents
- A narrower order (e.g. part of the home only) or a shorter duration
- Arrangements about bills, rent or mortgage payments
- Clear wording for child handovers
If you're arrested under a power of arrest
You must be brought before the court, normally within 24 hours. If the matter is adjourned and you're released, it should usually be dealt with within 14 days of your arrest, with at least 2 days' notice of the hearing. Get legal advice immediately. See breach and committal.
Legal aid
Losing your home is a serious consequence, so respondents to occupation orders may be more likely to meet the legal aid merits test, subject to means. We'll check for free.
Frequently asked questions
Can I be kicked out of my own house by an occupation order?
Yes. Even if you own or rent the property, the court can order you to leave for the period stated. You keep your ownership or tenancy rights. The order only controls who lives there.
How long does an occupation order last?
It depends on the applicant's status. Orders for entitled applicants (s.33) can last for a specified period or until further order. Orders for non-entitled applicants are limited to 6 months at a time.
Who can apply for an occupation order?
People associated with you who have a legal right to occupy the home, or former spouses/civil partners, cohabitants or former cohabitants without such rights, under different sections of the Family Law Act 1996.
What evidence do I need to oppose an occupation order?
Evidence of your housing needs and resources, finances, health and children's needs, and evidence answering the allegations about your conduct. The court weighs the balance of harm on both sides.
Do I have to keep paying the mortgage if I'm excluded?
The court can make orders about rent, mortgage and other outgoings when it makes certain occupation orders. Raise this at the hearing.