You've been served with an occupation order application. What now?
An occupation order can decide who lives in the family home, so the papers usually arrive with a short deadline and a lot of fear. This guide sets out what the court looks at, what your statement in response needs to cover, and the dates you must not miss.
First: find your deadlines
Read the order or notice that came with the application. It normally tells you:
- the date and time of the next hearing;
- the date by which you must file and serve your statement in response (often "by 4pm on" a named day);
- any page limit and the date for position statements before the hearing.
Put every date in your calendar now. A late statement can mean the court decides without hearing your side properly.
What the court weighs
For an applicant with rights in the home, the court looks at all the circumstances under section 33(6) of the Family Law Act 1996, including:
| Factor | What it means for your statement |
|---|---|
| Housing needs and resources of each of you and any child | Where would you live if you had to leave? Is it affordable? A letting agent's affordability check is strong evidence. |
| Financial resources | Income, mortgage or rent, who pays what. Payslips and statements, not just assertions. |
| Likely effect on health, safety and well-being of you both and any child | The children's school, routine and where they live now. |
| Conduct of each of you towards the other | Answer allegations calmly and specifically, with documents where you have them. |
Section 33(7) adds the balance of harm question: if the applicant or a child is likely to suffer significant harm attributable to your conduct if no order is made, the court must make the order unless you or a child would suffer harm as great or greater if it is made.
The Court of Appeal has described an occupation order that excludes someone from their home as draconian, appropriate only in exceptional circumstances (Chalmers v Johns [1999] 1 FLR 392). That is a point to make carefully and with evidence, not a guarantee.
What to put in your statement in response
- Answer the applicant's statement paragraph by paragraph. Say what you agree with, what you dispute, and why. Our guide to the statement in response shows the format.
- Housing and money. Where you and the children live now, the mortgage or rent, and what leaving would mean, with documents.
- The children. School, routine, who does what day to day. Facts, not labels about the other parent.
- Any incident the applicant relies on. Your own account, and any outcome (for example a police "no further action" letter). Don't swear to anything you can't stand behind.
- A proportionate alternative. The court can accept an undertaking (a formal promise to the court) instead of making an order under section 46, though not where it would otherwise attach a power of arrest.
- Statement of truth, signed and dated.
Mistakes that cost people
- Missing the filing date, or filing without serving the other side.
- Writing an angry narrative instead of answering the points.
- Relying on facts with no document behind them.
- Raising the divorce finances at length: the house's long-term ownership belongs in financial proceedings.
General information about procedure in England and Wales, not legal advice. EvidenceCanvas is not a law firm. For advice on your own case, speak to a solicitor, a LawWorks clinic or Citizens Advice.