Occupation orders: who gets to live in the home

Reviewed 19 October 2026 · Information for England and Wales

Where a non-molestation order controls someone's behaviour, an occupation order controls the home itself. The Family Court can use it to make the other person move out, keep them from coming back, shut them out of part of the property or the surrounding streets, or let you return to a home you had to flee. The powers are in sections 33 to 38 of the Family Law Act 1996.

There is no separate form – you ask for it on form FL401, the same one used for non-molestation orders, and plenty of people request both together. No court fee is charged.

Orders the court can make

Depending on the facts, a judge may:

• require the other person to leave
• bar them from returning, or from entering at all
• allow you and your children back in
• exclude them from certain rooms or parts of the property
• keep them out of a defined area around the home, such as your road
• prevent them ending your right to live there – for instance by serving notice on a joint tenancy
• sometimes deal with rent, mortgage payments, repairs or the use of furniture

Because it can shut someone out of a property they may own or rent, judges see an occupation order as a big step. They tend to make one where you or your children face genuine risk – the end of a relationship on its own is not enough.

Which section applies to you?

It depends on what right you have to live there.

Not sure where you fit? Just tell us in the questionnaire who owns or rents the property and whose name is on the deeds or tenancy, and we will identify the right section.

The balance of harm test

For an entitled applicant under section 33, the court must make an order if it appears that you or a child are likely to suffer significant harm because of the other person's conduct if no order is made – unless the other person, or a child, would suffer equal or greater harm if the order is made. This is known as the balance of harm test.

Alongside that, the judge weighs up:

• each person's housing needs and financial means
• how making, or not making, an order is likely to affect everyone's health, safety and well-being – children especially
• the way each of you has behaved towards the other

That's why we ask questions like where everyone would go and how far the children's school is. Clear answers make the judge's job easier.

Can I get one urgently?

Yes, an occupation order can be made without notice in an emergency – but judges are more hesitant than with non-molestation orders, because it means removing someone from a home without hearing their side. A common approach is to grant a non-molestation order immediately and fix a hearing a few days later for the occupation order. More on emergency orders.

Power of arrest

Where the other person has used or threatened violence, the court can attach a power of arrest to the occupation order, allowing the police to arrest them if they disobey it. Unlike a non-molestation order, breaking an occupation order isn't automatically a criminal offence, so a power of arrest makes a real difference.

Council and housing association homes

If your landlord is a council or housing association, keep your housing officer informed. An occupation order buys you time to stay safely while a longer-term solution, such as moving the tenancy into your name, is arranged. A tenancy transfer usually needs its own court application.