An Occupation Order is a legal injunction issued by the Family Court under the Family Law Act 1996 (FLA 1996) . It determines who has the right to live in, enter, or remain in the family home, or can exclude a person entirely from the property or a specific part of it.

Even if a person is the sole legal owner or tenant of a property, the family court has the power to restrict or exclude their right of occupation to protect the health, safety, and well-being of an applicant and any relevant children.

Who Can Apply? (The "Associated" & Legal Status Test)

To apply for an Occupation Order, the applicant must meet two statutory criteria under Sections 33 to 38 of the FLA 1996 :

1. The Association Test (Section 62): The applicant and the respondent must be "associated". This includes:
2.  
3. • Married, civil partners, or former spouses/civil partners.
   • Cohabitants or former cohabitants.
   • Persons who live or have lived in the same household (excluding tenants/boarders).
   • Relatives.
   • Persons engaged to be married or who have had an intimate personal relationship of significant duration.
   • Parents of a child or individuals with/who have had parental responsibility.

3. Entitlement to Occupy: Depending on whether the applicant has a legal right to the home (such as joint ownership, sole ownership, a tenancy agreement, or Matrimonial Home Rights ), different sections of the Act apply. If the applicant has no legal entitlement (e.g., non-entitled cohabitants or former partners), the court evaluates their application under specific sections (ss. 35–38) which grant more restricted or temporary rights.

Legal Principles & Statutory Tests

When deciding whether to grant an Occupation Order, the court follows a structured statutory framework.

1. The Balance of Harm Test (Section 33(7))

If the applicant or any relevant child is likely to suffer significant harm attributable to the conduct of the respondent if an order is not made, the court is placed under a statutory duty to make the order, unless :

• The respondent or any relevant child is likely to suffer significant harm if the order is made; and
• That harm is as great as or greater than the harm likely to be suffered by the applicant.

Key Judicial Principle: If the "balance of harm" favors the applicant, the court must make the order. If the harm test is inconclusive or does not trigger the mandatory duty, the court moves on to its general discretionary powers.

2. The Discretionary Factors (Section 33(6))

If the mandatory balance of harm test does not compel an order, the court exercises its discretion by carefully weighing the following four core factors known as the ‘Core Criteria Test’:

• Housing needs and resources of each of the parties and any relevant children.
• Financial resources of each party.
• Likely effect of any order (or refusal of an order) on the health, safety, and well-being of the parties and children.
• The conduct of both parties.

Essential Case Law

Judicial interpretation of the FLA 1996 has established several vital principles for Family Court judges:

Chalmers v Johns [1999] 1 FLR 392

• Principle: This landmark Court of Appeal decision emphasized that an occupation order—particularly one that ejects a homeowner or tenant from their property—is a drastic remedy .
• Application: The court underscored that the "balance of harm" test must be applied rigorously. It restored proportionality and restraint, highlighting that the court should not lightly exclude a person from their home unless justified by the severity of the circumstances (such as domestic abuse or risks to children).

Grubb v Grubb [2009] EWCA Civ 976

• Principle: Addressed the interplay between property rights and the temporary nature of occupation orders.
• Application: Reaffirmed that occupation orders are intended to regulate living arrangements temporarily during a relationship breakdown, rather than permanently determine long-term property rights or capital shares (which are typically resolved under matrimonial finance or TOLATA 1996 proceedings).

Dolan v Corby [2011] EWCA Civ 1664

• Principle: Clarified the necessity of proportionality when dealing with cohabiting parties and alternative housing options.
• Application: Highlighted that the court must closely scrutinize the practical reality of each party's housing resources, ensuring that exclusion orders are necessary and that lesser alternatives (such as regulating specific areas of a large home) are considered where appropriate.

What Else Can an Occupation Order Include?

Under the court’s broad administrative powers, an Occupation Order can also:

• Enforce a right to enter and remain in the home.
• Require a respondent to leave or stay away from a defined surrounding area.
• Allocate responsibility for paying mortgage instalments, rent, or household bills.
• Order one party to maintain the property or care for furniture and contents.
• Grant "Occupation Rent" (compensation paid by the person staying in the property to the person excluded from their home asset).

Duration and Enforcement

• Timeframe: Orders made under Section 33 are typically granted for a specified period (often up to 6 months) or until a specific event (such as a property sale or final property adjustment order). They can be extended if necessary.

• Power of Arrest: In cases involving violence, threats, or a high risk of harm, the court can attach a Power of Arrest to the order, ensuring swift police intervention if breached.

• Relationship with Non-Molestation Orders: Occupation orders are frequently applied for alongside Non-Molestation Orders to provide complete legal protection against both harassment and unwanted presence in the home.