Family Law
Occupation Order Barristers
Advice and representation on occupation orders under the Family Law Act 1996, for applicants and respondents.
Takes about 2 minutes. No obligation.
Barristers regulated by the Bar Standards Board
An occupation order decides who can live in the family home, or part of it. It can require someone to leave, stop them returning, keep them a set distance from the property, or regulate how the home is shared. Occupation orders are made under sections 33 to 38 of the Family Law Act 1996 and are applied for on Form FL401, often alongside a non-molestation order.
Which section applies depends on your relationship with the respondent and whether you have a right to occupy the home. An entitled applicant, for example someone who owns or rents the property or has home rights as a spouse or civil partner, applies under section 33. A non-entitled former spouse or civil partner applies under section 35, and a non-entitled cohabitant or former cohabitant under section 36. Sections 37 and 38 cover cases where neither party is entitled to occupy. The section affects the factors the court considers and how long the order can last.
Under section 33, the court applies the balance of harm test. If the applicant or a relevant child is likely to suffer significant harm attributable to the respondent's conduct if no order is made, the court must make an order, unless the respondent or a child would suffer harm as great or greater if it did. Beyond that, the court considers the parties' housing needs and resources, their financial resources, the likely effect on the health, safety and wellbeing of the parties and any child, and the parties' conduct. For non-entitled applicants the test and duration limits are different.
The courts treat an occupation order as a serious step, because it can remove someone from their home. A Direct Access Barrister can advise on whether an application is likely to succeed, which section applies, and the evidence needed, and represent you at the hearing. We also act for respondents facing an application who want to put their own housing needs and evidence before the court.
What Occupation Order Barristers Do
Hearing Representation
Your Barrister can represent you at:
- Urgent without-notice hearings where justified
- Return and directions hearings
- Contested occupation order hearings
- Applications to extend an order
- Hearings on related non-molestation orders
- Enforcement and committal hearings
Legal Advice
Clear guidance on:
- Whether you are an entitled or non-entitled applicant
- Which section of the Act applies
- How the balance of harm test works
- Likely duration of any order
- Rent, mortgage and outgoings while the order lasts
- Effect on any divorce or property dispute
Document Drafting
Your Barrister can draft:
- FL401 applications
- Witness statements in support
- Statements in response for respondents
- Draft occupation orders
- Position statements and skeleton arguments
- Undertakings and agreed arrangements
Your Barrister drafts these documents. You file them at court and arrange service on the other party as directed.
What You Handle
With Direct Access you:
- Provide title deeds, tenancy or mortgage details
- Gather evidence of incidents and harm
- Set out your housing and financial position
- File the application at court
- Arrange personal service of the order
- Attend each hearing
How Direct Access Works
- 1
Initial Consultation
Your Barrister reviews your relationship, your rights in the home and what has happened, and advises which section applies and whether an application is likely to succeed.
- 2
Evidence and Drafting
Your Barrister drafts the FL401 and a witness statement covering the statutory factors, including harm, housing needs, financial resources and conduct.
- 3
Filing the Application
You file the application at the family court. Occupation orders are usually decided after the respondent has had notice, though urgent without-notice orders can be made in exceptional cases.
- 4
Service
The application, statement and any order must be personally served on the respondent, usually through the court or a process server, so they can attend the hearing.
- 5
The Hearing
Your Barrister presents your evidence, cross-examines where needed and makes submissions on the balance of harm and the statutory factors. The court decides whether to make an order and on what terms.
- 6
After the Order
Your Barrister explains the terms, any power of arrest and how long the order lasts, and advises on extension, variation or the longer-term future of the home.
Does your case qualify for Direct Access?
Tell us about your matter and we'll confirm whether you can instruct a Barrister directly, then match you with the right specialist.
Prefer to talk? Call 0800 302 9921. Lines open 8am to 8pm, same-day callback.
Frequently Asked Questions
What is the difference between entitled and non-entitled applicants?
An entitled applicant has a legal right to occupy the home, for example as an owner, tenant, or a spouse or civil partner with home rights. A non-entitled applicant has no such right, for example a cohabitant who is not named on the deeds or tenancy. Entitled applicants apply under section 33; non-entitled applicants apply under sections 35 to 38 depending on the relationship.
What is the balance of harm test?
Under section 33(7), if the applicant or a relevant child is likely to suffer significant harm attributable to the respondent's conduct without an order, the court must make one, unless the respondent or a child is likely to suffer equal or greater harm if the order is made. For cohabitants and others applying under sections 36 and 38, the court considers the balance of harm but is not required to make an order.
How long does an occupation order last?
Under section 33 the court can make an order for a specified period, until a specified event, or until further order. Orders under sections 35 and 37 are limited to six months but can be extended more than once. Orders under sections 36 and 38 are limited to six months and can be extended only once.
Can I get an occupation order if I do not own the home?
Possibly. Former spouses, former civil partners, cohabitants and former cohabitants can apply as non-entitled applicants in some circumstances. The court will look at factors such as the nature of the relationship, its length, whether there are children, and the time since you lived together.
An occupation order application has been made against me. What can I do?
You are entitled to be heard. You can file a statement explaining your housing needs, finances and account of events, and argue that the balance of harm favours you or that no order is necessary. A Barrister can advise on your options, including whether undertakings or an agreed arrangement may be appropriate.
Does an occupation order change who owns the house?
No. An occupation order regulates who can live in the property for a period. It does not change ownership or tenancy. Longer-term questions about the home are decided in financial remedy proceedings on divorce, or under property law for unmarried couples.
What happens if an occupation order is breached?
Breach of an occupation order is not itself a criminal offence, but it can be punished as contempt of court. Where the respondent has used or threatened violence, the court may attach a power of arrest so the police can arrest for breach.
Can the court decide who pays the mortgage or rent?
Yes. Under section 40 of the Family Law Act 1996, when making certain occupation orders the court can make orders about repairs, maintenance, rent, mortgage payments and other outgoings, and about the use of furniture and contents. Your Barrister can advise on what to ask for.
Get Clear Advice About Your Home
Whether you are applying or responding, a specialist family Barrister can help you understand where you stand.
Or call us: 0800 302 9921. Lines open 8am to 8pm, same-day callback.