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Safety · the family home

Occupation order: who can live in the family home

An occupation order is a court order that decides who can live in the family home or enter the area around it[1]. In England and Wales you apply on Form FL401, and there is no fee[1][2]. If you are in immediate danger, call the police[3].

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Last reviewed Sources checked

Prepare with MiamSee the sources
To apply for an occupation order[2]
Longest first order if you have no right to occupy[4]
Time to bring an arrested person before the court[5]
The application form[1]

01/ What it is

What an occupation order can do

GOV.UK describes three injunctions for victims of domestic abuse: a non-molestation order, an occupation order, and in some areas a domestic abuse protection order[1]. The occupation order is the one about the home[1].

Depending on who has the right to live there, an order can[6]:

  • confirm your right to stay in the home[6];
  • require the other person to let you back in[6];
  • set out who lives in which part of the home, or when[6];
  • stop or limit the other person's right to live there, or require them to leave[6];
  • keep them out of a defined area around the home[6].

Bills, repairs and the mortgage

When it makes an occupation order, or later, the court can also decide who pays the rent, the mortgage or other outgoings, who does repairs, and order the home and its contents kept secure[7]. Those terms end when the occupation order ends[7].

02/ Who can apply

Who can apply for an occupation order in the UK

The Family Law Act 1996 sets out who can apply, and the rules depend on whether you have a right to live in the home[6][4]. These rules apply in England and Wales[6].

If you own or rent the home, or have home rights as a spouse or civil partner, you can apply against someone you are associated with, where the home is, was or was meant to be your shared home[6]. The order can last for a set period, until a set event or until further order[6].

03/ The test

How the court decides

The court looks at all the circumstances, including[6]:

  • the housing needs and housing resources of each of you and of any child[6];
  • your financial resources[6];
  • the likely effect of making, or not making, the order on everyone's health, safety and well-being[6];
  • how each of you has behaved towards the other[6].

The balance of harm

If you have a right to live in the home and you or a child are likely to suffer significant harm caused by the other person's conduct without an order, the court must make one, unless the other person or a child is likely to suffer harm as great or greater if it does[6]. For cohabitants without a right to occupy, the court also looks at the nature of the relationship, how long you lived together, any children of you both and how long ago you lived together[4].

04/ Applying

How to apply on Form FL401

Form FL401 is the application for a non-molestation order, an occupation order or both[1]. It comes with a template supporting statement, and large print and easy read versions[8].

  1. Apply online by preparing it through the RCJ Citizens Advice CourtNav service, or by email, post or in person[9]. If you write your own supporting statement, it must end with a statement of truth[8].

Under 18

If you are under 16 you need the High Court's permission to apply, and at 16 or 17 you need a litigation friend[8].

Fees and advice

There is no fee to apply, and charities can advise on applying[1][2]. You can represent yourself without a legal adviser, and you may be able to get legal aid for one, for example with evidence that you are a victim of domestic abuse[12].

05/ If it is broken

If an occupation order is broken

The person named in an injunction can be arrested if they break it[1]. If the court makes an occupation order and the other person has used or threatened violence against you or a child, it must attach a power of arrest unless it is satisfied you will be protected without one[5].

With a power of arrest, the police can arrest without a warrant, and the person must be brought before the court within 24 hours[5]. Without one, you can apply to the court for a warrant for their arrest[5].

06/ MIAMs

Occupation orders, MIAMs and mediation

An FL401 application is not one of the children or financial applications for which Practice Direction 3A requires a MIAM[13][14]. If you later apply for a child arrangements order or a financial order, the MIAM rules apply to that application, and there is an exemption with evidence of domestic abuse[15][16]. See domestic abuse support.

A mediator must take domestic abuse into account and must not mediate where mediation has been assessed as not safe or not suitable[17]. See when mediation is not suitable.

07/ Questions

Frequently asked questions

What is an occupation order?

A court order that decides who can live in the family home or enter the area around it[1].

How much does an occupation order cost?

There is no fee to apply[2][1].

How long does an occupation order last?

If you have a right to live in the home, for a set period, until an event or until further order; otherwise up to 6 months at a time[6][4].

Can I get an occupation order if I am not on the tenancy or deeds?

Yes, in some cases: former spouses, civil partners and cohabitants with no right to occupy can apply, for shorter orders[4].

Can an occupation order be made without the other person knowing?

Yes, where the court considers it just and convenient, followed by a full hearing at which they can respond[11][10].

What is the difference between an occupation order and a non-molestation order?

A non-molestation order protects you or your child from being harmed or threatened; an occupation order decides who can live in the home[1]. Form FL401 is used for either[1].

Do I need a MIAM for an occupation order?

No: Practice Direction 3A applies the MIAM requirement to listed children and financial applications, and an FL401 is not one of them[13][14].

08/ Sources

Sources we checked

  1. Get an injunction if you've been the victim of domestic abuse — GOV.UK · Form FL401 — HMCTS, GOV.UK
  2. Family court fees (EX50) — HMCTS, GOV.UK
  3. Domestic abuse: how to get help — Home Office, GOV.UK
  4. Family Law Act 1996, section 35 — legislation.gov.uk · Family Law Act 1996, section 36 — legislation.gov.uk · Family Law Act 1996, section 37 — legislation.gov.uk · Family Law Act 1996, section 38 — legislation.gov.uk
  5. Family Law Act 1996, section 47 — legislation.gov.uk
  6. Family Law Act 1996, section 33 — legislation.gov.uk
  7. Family Law Act 1996, section 40 — legislation.gov.uk
  8. Apply for a non-molestation or occupation order: Form FL401 — HMCTS, GOV.UK · Get an injunction if you've been the victim of domestic abuse: how to apply — GOV.UK
  9. Get an injunction if you've been the victim of domestic abuse: how to apply — GOV.UK · Apply for a domestic abuse protection order in a family court — HMCTS, GOV.UK
  10. Get an injunction if you've been the victim of domestic abuse — GOV.UK · How to apply for an injunction — GOV.UK
  11. Family Law Act 1996, section 45 — legislation.gov.uk
  12. Apply for a court order: get help from a legal adviser — GOV.UK
  13. Practice Direction 3A, paras 1, 11–13 and 37 — justice.gov.uk · What to do before applying for a financial order when you get divorced — Advicenow
  14. Practice Direction 3A — Ministry of Justice
  15. FPR Part 3, r3.7
  16. FPR r3.8 · PD3A
  17. Standards for MIAMs (August 2022) — Family Mediation Council

10/ Safety first