Occupation Order Help | Family Home, FL401 & Evidence | JSH Law

If you or a child are in immediate danger

Housing evidence and court paperwork come after immediate safety.

If there is an immediate risk of violence or serious harm, contact the police using 999.

An occupation order can form part of a longer-term safeguarding plan, but it should not delay emergency police, medical, housing or safeguarding assistance where that is required.

Separation can create a very practical question:

Who is going to live in the house?

Sometimes the answer can be agreed.

Sometimes it cannot.

The problem becomes particularly serious where:

• domestic abuse is alleged;
• one person has already left and wants to return;
• one person is being pressured to leave;
• the home is owned by only one party;
• the tenancy is in only one name;
• children need stability in the home;
• one party has nowhere else safe to live;
• mortgage or rent payments are disputed;
• one party wants the other excluded from part of the property or surrounding area; or
• occupation of the property has become unsafe or unworkable.

An occupation order under Part IV of the Family Law Act 1996 can regulate who may live in, enter or remain in the family home.

But eligibility and the legal test depend on the parties’ particular relationship to the property.

Property Rights → Housing Needs → Harm → Children → Practical Consequences → Order Sought

Before asking the court to remove somebody from a home — or restore somebody’s right to live there — identify the legal and practical housing position first.

The short answer: what does an occupation order do?

Depending on the statutory route and the circumstances, an occupation order can:

• confirm or enforce a person’s right to remain in the home;
• allow somebody who has left to return;
• regulate how two people occupy different parts of the home;
• require one person to leave all or part of the home;
• suspend or restrict a person’s existing occupation rights;
• exclude somebody from a defined area surrounding the property; and
• in some cases deal with related rent, mortgage, repair or property-outgoing arrangements.

An occupation order does not normally decide permanent ownership of the property. Property ownership and beneficial-interest disputes may need to be resolved separately.

Start with the legal and housing position

JSH Law can provide privately funded, defined-scope support with organising occupation-order evidence and court documents for litigants in person.

Depending on the agreed scope, this may include:

• identifying the relevant property and occupancy facts;
• organising FL401 information;
• supporting witness-statement preparation;
• housing and financial evidence organisation;
• domestic-abuse chronology preparation;
• balance-of-harm evidence organisation;
• children’s housing and welfare evidence;
• mortgage or tenancy documentation;
• preparing material for a without-notice request;
• hearing preparation;
• bundle preparation; and
• preparing material to vary, extend or discharge an existing order.

What is an occupation order?

An occupation order is an injunction made under Part IV of the Family Law Act 1996 which regulates occupation of a dwelling-house.

The Act provides several different statutory routes.

Depending on the route, the court may be able to:

• protect an applicant’s existing right to remain;
• permit an applicant to return;
• regulate occupation between the parties;
• require a respondent to leave;
• restrict the respondent’s occupation rights; or
• exclude the respondent from a defined surrounding area.

This makes an occupation order fundamentally different from an order deciding who owns the property.

Occupation order vs non-molestation order

In some cases both forms of protection are sought using the same FL401 application.

But one is not a substitute for understanding the other.

Who can apply for an occupation order?

Eligibility depends both on the relationship between the parties and their relationship to the property.

GOV.UK summarises the main situations as including cases where:

• the applicant owns or rents the home and it is, was or was intended to be shared with an eligible associated person;
• the applicant does not own or rent it but is married to or in a civil partnership with the owner and has home rights;
• a former spouse or civil partner owns or rents what was the shared matrimonial or civil-partnership home; or
• a cohabitant or former cohabitant owns or rents what was or was intended to be the shared home.

This is why occupation-order applications are particularly fact-sensitive.

“Whose name is on the deeds?” is important — but it is not always the whole answer.

Why the statutory route matters

The Family Law Act does not contain one universal occupation-order test.

Occupation orders can be made under sections:

• 33;
• 35;
• 36;
• 37; or
• 38

Which section applies can affect:

• eligibility;
• the factors the court considers;
• the applicant’s existing occupation rights;
• what provisions the order can contain; and
• how long the order can remain in force.

Section 33: where the applicant already has an entitlement to occupy

Section 33 is a particularly important occupation-order route.

Broadly, it applies where the applicant is entitled to occupy the home because of:

• a beneficial estate or interest;
• a contract;
• another statutory right to remain; or
• qualifying matrimonial or civil-partnership home rights.

The home must also fall within the statutory relationship requirements.

Under section 33, the court can potentially:

• enforce the applicant’s entitlement to remain;
• require the respondent to allow the applicant to enter and remain;
• regulate occupation by either or both parties;
• suspend or restrict the respondent’s occupation rights;
• require the respondent to leave;
• restrict or terminate certain home rights; or
• exclude the respondent from a defined area including the home.

Sections 35–38 cover different housing situations

The other occupation-order routes deal broadly with circumstances where:

• a former spouse or civil partner lacks the existing right to occupy while the other party is entitled;
• a cohabitant or former cohabitant lacks the existing right to occupy while the other party is entitled;
• neither spouse or former spouse is entitled to remain; or
• neither cohabitant or former cohabitant is entitled to remain.

Those routes contain different statutory requirements and time limits.

The practical point for a litigant in person is:

Do not describe your application simply as “I want him out of the house.”

Identify why the court has jurisdiction to regulate occupation of that particular property between those particular parties.

What are matrimonial or civil-partnership home rights?

A spouse or civil partner who does not own the family home may nevertheless have statutory occupation rights under the Family Law Act 1996.

Where the property is registered in the other spouse’s or civil partner’s sole name, those rights may also be capable of protection at HM Land Registry.

The usual Land Registry form for registering a notice of home rights is:

Registration of home rights and an occupation order are not the same thing.

Registering home rights can help protect an existing statutory occupation right against dealings with the property.

An occupation order can actively regulate who occupies or enters the home.

What is the balance-of-harm test?

This is one of the most important concepts in occupation-order proceedings.

Under section 33, if the court concludes that the applicant or a relevant child is likely to suffer significant harm attributable to the respondent’s conduct if the relevant occupation provisions are not made, the court must make the order unless:

• the respondent or a relevant child is also likely to suffer significant harm if it is made; and
• that harm is as great as or greater than the harm likely to be suffered by the applicant or child if the order is not made.

Corresponding harm considerations arise under the other statutory occupation-order routes, although the precise statutory structure differs.

What factors does the Family Court consider?

Under section 33, the court considers all the circumstances, including:

• the housing needs and housing resources of each party;
• the housing needs and resources of any relevant child;
• the financial resources of the parties;
• the likely effect of making or refusing the order on the health, safety or well-being of the parties;
• the likely effect on any relevant child; and
• the conduct of the parties in relation to each other and otherwise.

Other occupation-order sections contain additional considerations depending upon the parties’ legal relationship.

For example, cohabitant cases can require consideration of matters such as:

• the nature and duration of the relationship;
• whether there are children for whom both parties have responsibility;
• how long ago the parties stopped living together; and
• other property or financial proceedings.

Children are part of the housing analysis

An occupation order can dramatically alter a child’s living arrangements.

Relevant matters may include:

• where the child currently lives;
• school or nursery;
• special educational needs;
• disability or health needs;
• bedroom requirements;
• proximity to support networks;
• the impact of sudden relocation;
• domestic abuse witnessed or experienced by the child;
• existing child-arrangements orders; and
• alternative accommodation realistically available to each adult.

“The children live with me” is relevant.

It is more useful if the evidence then explains what displacement from the home would actually mean for them.

What can the court actually order?

Depending on the statutory route, an occupation order may:

• confirm a right to remain in occupation;
• permit someone to return to the home;
• require the other party to permit entry;
• divide occupation of different areas within the property;
• require the respondent to leave part or all of the property;
• suspend or restrict a respondent’s right to occupy;
• exclude the respondent from a defined area containing the home; or
• make certain ancillary arrangements concerning the property.

An order does not have to be all or nothing.

In an appropriate case, the court can regulate occupation rather than completely exclude one party.

Who pays the mortgage or rent if one person is ordered to leave?

Leaving the property does not automatically end somebody’s contractual responsibility to a mortgage lender or landlord.

Under section 40, where an occupation order is made under sections 33, 35 or 36, the court can potentially make additional provisions dealing with:

• repair and maintenance;
• rent;
• mortgage payments;
• other property outgoings;
• payments connected with accommodation;
• use of furniture and contents; and
• steps required to keep the home secure.

Those powers do not rewrite the underlying mortgage or tenancy contract with the lender or landlord.

Does an occupation order change who owns the house?

Not ordinarily.

An occupation order regulates occupation.

It does not automatically determine:

• legal ownership;
• beneficial ownership;
• the final division of equity;
• whether the property must ultimately be sold;
• a financial remedy settlement; or
• every dispute about a tenancy.

Section 39 of the Family Law Act expressly preserves later claims concerning legal or beneficial interests in property.

That distinction is particularly important in cohabitation and financial-remedy disputes.

What evidence can support an occupation-order application?

Think in categories.

Housing evidence matters

If you say:

“He has somewhere else to go.”

ask what evidence supports that.

Likewise:

“I will be homeless if I have to leave.”

may require explanation.

Depending on the case, evidence might address:

• family or friends who could realistically provide accommodation;
• rental affordability;
• local-authority housing assistance;
• refuge or supported accommodation;
• ownership of another property;
• work-related accommodation;
• accessibility requirements;
• children’s school stability; or
• why an apparently available alternative is not actually safe or suitable.

Domestic abuse and coercive control evidence

An occupation order is often sought because continuing to share a home has become unsafe.

Relevant behaviour may include:

• physical violence;
• threats;
• coercive or controlling behaviour;
• monitoring;
• sexual abuse;
• economic abuse;
• damage to property;
• sleep deprivation;
• blocking access to rooms or exits;
• preventing use of household resources;
• threatening eviction;
• using children to intimidate the other parent; or
• post-separation conduct connected with the home.

Do not simply say:

“Living together is toxic.”

Describe the actual behaviour and why continued occupation together creates harm or risk.

The supporting witness statement needs to deal with the home as well as the abuse

Family Procedure Rule 10.2 requires an occupation-order application to be supported by a witness statement.

The Family Justice Council’s 2026 protective-injunction guidance specifically identifies housing information as important.

Depending on the case, the statement should address:

• the relationship between the parties;
• children;
• who currently lives in the property;
• who owns it;
• whose name appears on the tenancy;
• mortgage or landlord details;
• the parties’ legal rights to occupy;
• domestic-abuse history;
• recent events;
• impact and risk;
• housing alternatives;
• financial resources;
• why the requested occupation arrangement is necessary;
• what precise order is sought;
• whether related payments or outgoings need addressing; and
• why the case should proceed without notice, if applicable.

A statement focusing solely on abuse but saying nothing about the parties’ housing position may leave the judge without important information needed for the occupation-order analysis.

How do you apply for an occupation order?

The principal HMCTS application form is:

A supporting witness statement is also required.

There is currently no court fee for an FL401 protective-injunction application.

Applications can be made through the available HMCTS routes, including CourtNav, email, post or in person where appropriate.

If confidential contact details need protection, Form C8 should be considered.

Can an occupation order be made without notice?

Legally, yes.

Section 45 of the Family Law Act permits the court to make an occupation order without the respondent receiving the normal advance notice where the court considers that it is just and convenient.

The statutory considerations include:

• risk of significant harm if the order is not made immediately;
• whether the applicant may be deterred or prevented from pursuing the application if immediate protection is not provided; and
• specified circumstances involving deliberate evasion of service and serious prejudice caused by delay.

Without-notice applications require candour

The respondent is not present to correct or challenge what the applicant says.

That means the applicant must present material facts fairly — including material facts which may not assist the application.

In an occupation-order case that could include:

• the respondent owning the property;
• the respondent having nowhere obvious to live;
• the applicant having recently left voluntarily;
• recent consensual cohabitation;
• an existing financial agreement;
• relevant child-arrangements provisions;
• another property available to one party;
• relevant police bail conditions;
• a disputed version of the recent incident; or
• another material circumstance the judge ought to know.

A difficult fact should be explained, not hidden.

What if someone is applying to exclude you from your home?

Take the application seriously.

Identify:

• which statutory section is relied upon;
• who legally owns or rents the home;
• your right to occupy;
• the allegations of harm;
• the housing position of both parties;
• the effect on the children;
• your alternative housing options;
• the applicant’s alternative housing options;
• your financial circumstances;
• any factual allegations you admit, deny or qualify; and
• whether a less restrictive arrangement could address the risk.

Do not respond by threatening eviction, changing locks, cutting utilities or taking retaliatory action while the issue is before the court.

Do the landlord or mortgage lender need to know?

Sometimes, yes.

Under Family Procedure Rule 10.3, where an occupation-order application is made under section 33, 35 or 36, the applicant must serve the mortgagee and any landlord with:

• a copy of the application; and
• notice of their right to make representations.

Any order made under those sections must also be served on the mortgagee and landlord.

The court can hold a hearing to consider representations made by them.

Service of the application and order

In an on-notice application, the application, supporting statement and hearing information ordinarily have to be personally served on the respondent within the timetable required by Part 10 or the court’s direction.

The applicant must not personally serve the respondent.

If the applicant is acting in person, the court can be asked to undertake service.

Similarly, an occupation order itself must normally be served appropriately.

Do not create an unsafe face-to-face encounter merely for the purpose of serving protective-injunction paperwork.

What happens if an occupation order is breached?

The enforcement position is different from a non-molestation order.

Breach of a non-molestation order can itself constitute a criminal offence under section 42A.

An occupation order does not operate in exactly the same way.

Under section 47, where the statutory conditions are met — including circumstances involving use or threats of violence — the court can attach a power of arrest to specified provisions of an occupation order.

If a power of arrest applies to the provision allegedly breached, a police officer can arrest without warrant where the statutory conditions are satisfied.

Other breaches may be enforced through the Family Court, including contempt procedures where applicable.

Can the court accept an undertaking instead?

In some circumstances, yes.

Section 46 allows the court to accept an undertaking where it has power to make an occupation or non-molestation order.

An undertaking is a formal promise to the court and is enforceable.

However, no power of arrest can be attached to an undertaking.

The statute also restricts use of an undertaking where an order carrying a power of arrest would otherwise be required.

How long does an occupation order last?

There is no single answer for every occupation order.

The duration depends upon the statutory route.

Under section 33, an order with continuing effect can potentially be made:

• for a specified period;
• until a specified event; or
• until further order.

Other occupation-order routes under sections 35–38 contain six-month limitations and different rules governing extensions.

That means statements such as:

“Occupation orders always last six months”

are too simplistic.

Check the statutory route and the wording of the actual order.

Can an occupation order be varied, extended or discharged?

Yes, subject to the relevant statutory limitations.

The current HMCTS form is:

The existing order must still be in force when the FL403 application is made.

Changes in circumstances might include:

• new accommodation becoming available;
• ongoing or increased risk;
• a financial remedy order;
• sale of the property;
• changes to child arrangements;
• new tenancy arrangements;
• a term proving unworkable; or
• a need to extend protection.

Occupation orders and child-arrangements proceedings

Housing and child-arrangements proceedings can overlap heavily.

An occupation order may affect:

• where a child lives;
• handover arrangements;
• contact at the family home;
• school journeys;
• communication between parents;
• safeguarding arrangements; and
• the practical operation of an existing child-arrangements order.

Where domestic abuse allegations arise in both Family Law Act and Children Act proceedings, the courts should seek to identify overlapping cases and avoid unnecessary duplication of factual determination.

Occupation orders and financial remedy proceedings are different

An occupation order can determine the immediate or interim occupation of the home.

Financial remedy proceedings may later decide issues such as:

• sale of the home;
• transfer of ownership;
• lump-sum payments;
• mortgage arrangements;
• housing needs;
• other assets; and
• the longer-term financial settlement.

An occupation order should therefore not be mistaken for a final financial settlement.

What about Domestic Abuse Protection Orders?

Domestic Abuse Protection Orders — DAPOs — are a separate statutory protective regime currently operating in specified pilot areas.

A DAPO can potentially contain requirements affecting:

• attendance at or near a home;
• who can stay in or return to the home;
• contact;
• specified positive requirements; and
• electronic monitoring in appropriate cases.

The DAPO pilot currently includes:

• Greater Manchester;
• Croydon, Bromley and Sutton;
• Hartlepool;
• Middlesbrough;
• Redcar and Cleveland;
• Stockton-on-Tees; and
• North Wales.

The existence of the pilot does not mean every case in those areas should use a DAPO instead of a Family Law Act occupation order.

The appropriate protective route depends upon the facts and powers required.

Can legal aid be available for an occupation order?

Potentially, yes.

Civil legal aid may be available in cases involving protection from domestic abuse, subject to eligibility and the applicable funding requirements.

If legal aid may provide funded legal representation, investigate that option before assuming private support is the only route.

Common occupation-order mistakes

Who owns or rents it? → Who can occupy? → What is the harm? → Where can each person live? → What do the children need? → What order is proportionate?

That framework usually produces a much clearer application than beginning with the desired outcome and working backwards.

How JSH Law can help with an occupation-order case

JSH Law provides privately funded, defined-scope litigation and document-preparation support for litigants in person.

Depending on the agreed scope, support may include:

• reviewing the property and occupancy position;
• organising FL401 information;
• supporting witness-statement preparation;
• building a domestic-abuse chronology;
• organising housing evidence;
• preparing a balance-of-harm evidence summary;
• organising children’s housing evidence;
• organising title, mortgage or tenancy documents;
• preparing a housing-options comparison;
• organising income and outgoings information;
• identifying related child-arrangements orders;
• identifying related financial proceedings;
• preparing evidence for a without-notice request;
• hearing preparation;
• bundle preparation;
• order and deadline tracking; and
• preparing material for an FL403 variation, extension or discharge application.

Asking JSH Law for occupation-order help? Send these first

Start with the property and the immediate problem.

1. A short explanation of who currently lives in the property.
2. Why the present arrangement is unsafe or unworkable.
3. The Land Registry title if available.
4. The tenancy agreement if rented.
5. Mortgage information if applicable.
6. Your marriage or civil-partnership status, if relevant.
7. Any registered home-rights information.
8. Any existing FL401 or witness statement.
9. Any existing non-molestation order.
10. Any child-arrangements order.
11. Any current financial-remedy proceedings or property dispute.
12. A short note explaining where each party could realistically live if the order were made.
13. A small selection of the clearest evidence of the current risk.
14. The next hearing or filing deadline.

Check legal aid where domestic abuse is involved

Legal aid may be available for protective Family Law Act proceedings, subject to eligibility.

Where funded legal representation may be available, investigate that before assuming you need to manage the application entirely alone.

Where JSH Law is instructed privately, the scope and fee basis will be agreed before substantive work begins.

Frequently asked questions about occupation orders

Related JSH Law guides

• Non-Molestation Order Help & Evidence Preparation
• Domestic Abuse Evidence & PD12J
• Family Court Evidence & Chronology Help
• Financial Remedy Help
• Family Court Hearing Preparation
• Family Court Bundle Preparation Help
• Family Court Legal Aid

Official law, rules and guidance

This page has been prepared by reference to current official sources including:

• Family Law Act 1996 – Part IV
• Family Procedure Rules Part 10
• Practice Direction 10A
• Judiciary – 2026 Protective Injunction Guidance
• HMCTS – Form FL401
• HMCTS – Form FL403
• HM Land Registry – Practice Guide 20: Home Rights
• GOV.UK – Staying in Your Partner’s Property During Separation or Divorce
• GOV.UK – Occupation Order Eligibility
• GOV.UK – Legal Aid and Domestic Abuse

Legal and procedural information last checked: 16 September 2026.

Important service information

JSH Law provides defined-scope litigation support, document-preparation assistance and practical support for litigants in person.

Occupation-order proceedings can involve complex questions of property rights, tenancy, domestic abuse, children, financial resources and statutory eligibility.

Assistance from JSH Law may include helping organise the client’s factual instructions, supporting evidence, chronology, housing information and court documents within the agreed scope.

JSH Law does not determine legal or beneficial ownership of property, guarantee that an occupation order will be made or predict how disputed factual evidence will be determined.

The litigant in person remains responsible for checking and approving factual statements, signing statements of truth, complying with court orders, filing and serving documents where required and meeting deadlines.

Where regulated legal advice, conveyancing, property litigation, conduct of litigation, reserved advocacy or formal representation is required, assistance should be obtained from an appropriately authorised professional.

This page provides general procedural and educational information about occupation orders in England and Wales. It is not case-specific legal advice. The correct statutory route and outcome depend upon the parties’ relationship, ownership or tenancy position, housing resources, evidence, children and individual circumstances.

The question is not simply who wants the house

Who has the right to occupy? What is the risk? What do the children need? Where can each party realistically live? What are the financial consequences? What order is actually necessary?

JSH Law can help organise those issues into a clearer working case.