Occupation orders: rights to stay in the family home
An occupation order decides who has the right to live in a home when a relationship breaks down - it can enforce your right to remain, require the other person to let you back in, exclude them from the property or a defined area around it, or regulate how you both use the home if you remain together under the same roof. It comes from Part IV of the Family Law Act 1996 - the same Part as non-molestation orders.
Who can apply
The Act sorts applicants by their rights in the property (ss.33-38):
| Your situation | Section | Notes |
|---|---|---|
| You own or rent the home, or have home rights (e.g. via marriage/civil partnership) | s.33 | The main route for entitled applicants - spouses/civil partners and legal/beneficial owners or tenants. |
| Former spouse/civil partner with no existing right to occupy | s.35 | The court weighs extra factors, including how long ago the marriage or civil partnership ended. An order lasts up to 6 months and can be extended once, for up to 6 months. |
| Cohabitant or former cohabitant with no existing right to occupy | s.36 | Narrower test: the court also weighs the nature of the relationship, how long you lived together and how long ago. An order lasts up to 6 months and can be extended once. |
| Spouses or civil partners, neither entitled to occupy | s.37 | An order lasts up to 6 months and can be extended more than once. |
| Cohabitants or former cohabitants, neither entitled to occupy | s.38 | Rare. An order lasts up to 6 months and can be extended once. |
What the court weighs (s.33(6)-(7))
For entitled applicants the court has regard to all the circumstances including: the housing needs and resources of each party and any relevant child; financial resources; the likely effect of any order (or no order) on the health, safety or well-being of the parties and any child; and the parties' conduct (only where it would be inequitable to disregard it).
Section 33(7) contains the decisive tie-break: if the applicant or a relevant child is likely to suffer significant harm attributable to the respondent's conduct if the order is not made, the court must make the order, unless the respondent or a relevant child is likely to suffer equally or greater harm if it is made (the "balance of harm" test).
How long do they last?
The time limits come from the Family Law Act 1996 itself. An order under s.33 can last for a set period, until a set event, or until a further order. Orders under ss.35 to 38 last up to six months; under ss.35, 36 and 38 they can be extended once, and under s.37 more than once. The court sets the period in the order. Occupation orders manage an immediate situation, while long-term property rights are settled elsewhere (divorce financial proceedings, TOLATA for co-owners, tenancy routes).
Occupation order vs non-molestation order
They answer different questions and are frequently applied for together on the same Form FL401:
| Occupation order | Non-molestation order | |
|---|---|---|
| Question it answers | Who may live in / enter the home | What conduct is prohibited |
| Statutory source | FLA 1996 Part IV ss.33-38 | FLA 1996 s.42 |
| Breach consequences | Contempt of court (committal) - a power of arrest can be attached | A criminal offence to breach it without reasonable excuse (s.42A); it can instead be dealt with as contempt of court, but not both |
Both are free to apply for (GOV.UK confirms no court fee for non-molestation, occupation and Domestic Abuse Protection Order applications). Our guide to non-molestation orders covers that application in detail, including the ex parte route in emergencies.
Frequently asked questions
- Can I get an occupation order if the tenancy is only in my ex's name?
- If you are married or in a civil partnership, you usually have "home rights" to occupy even if the tenancy or deed is not in your name - s.33 with s.30 home rights is designed for exactly this. Unmarried cohabitants have a narrower route (s.36) and should get advice early.
- Do I have to pay a court fee?
- No. GOV.UK's current fee schedule shows "No fee" for non-molestation, occupation and Domestic Abuse Protection Order applications (checked 5 Oct 2026).
- Will the order force my ex to pay the mortgage or rent?
- An occupation order regulates occupation; it can in some cases require the respondent to meet outgoings, but that overlaps with financial proceedings - the court will look at resources under s.33(6).
Sources (checked 5 Oct 2026): Family Law Act 1996 ss.33, 35-38, 42 and 42A (legislation.gov.uk, live text); GOV.UK fee schedule (EX50 family table: no fee for FL401 protection orders); PD12J context via justice.gov.uk. General information, not legal advice.