Occupation Orders

Making the application 

An occupation order application uses the same form FL401 as a non-molestation application and it is common to apply for them together, although this is not necessary.  

Important information about timescales 

You can apply for an order: 

• Without notice (ex parte), which means that it is made without the other party knowing you have applied for it. The first time they learn of it would then be when they are served with it and have therefore to comply with it by leaving the property. 

• On notice, meaning that the court lists a hearing you both attend and will decide at that hearing whether to make the order. 

It is very rare for an occupation order to be made without notice. The guidance for judges says that it would be exceptional and they must think very carefully about it. There must be specific evidence to justify breaching the other party’s rights to live in their home. If you have asked them to make the order without telling your ex in advance, then you need to explain why, in your witness statement.  

Judges prefer to hear from both sides first, before they make an order. This means that you will almost certainly need to attend a hearing with the judge and your ex before the order will be made. 

It is common for people to apply for a non-molestation order and an occupation order at the same time in the same form. The judge may make neither order without a hearing, or it may make the non-molestation order but not the occupation order until a hearing. That means you might both be in the same house but with the protection of a non-molestation order, while you wait for the court hearing.   

There is guidance for judges about when they can make an order without notice and what the order should say. There is also an example order.  

Writing the witness statement 

You will need to write a witness statement and send this to court with the application form. A witness statement explains to the judge why you need the protection of an order.  

There is a template witness statement on the government website. You can print this or you can type into it and save it.  

Find the part of the drop-down sections above that is for your situation and make sure you write in your statement about all the things that are in the 'how the court decides' bit. These is likely to include 

• The nature of your relationship – married or unmarried? 

• The house – whose name it is in, when you lived there 

• The harm to you and the children and how this is caused by your ex 

• Your ex’s behaviour 

• What you’re worried will happen if the court doesn’t make the order 
  Your financial position 

• Your ex’s financial position 

• Other places either of you could live 

• Why it’s important to stay in that house 

• Any other court cases about the house 

• The background to your relationship and its end including dates you lived together 

• The level of commitment, if you were not married to each other 

• If you are applying for an order without notice to the other party then you must explain why. There’s more info on this above. 

There is also a really good guide by Rights of Women which explains what your statement should cover.  

There is also an example in the annex to the guidance given to lawyers.  

Some tips on writing your statement 

Remember that this is an emergency form or protection. Organise your statement with headings so that it is easy for the judge to read, as they will do so quickly among their other work. At the same time, it needs to be detailed enough for the judge to know whether you need protection and for your ex to know what things you are talking about.  

Sometimes it can help to have a summary section at the beginning.  

Think of it like a true story. Use your own words and don’t try to sound legal – that’s not what a witness statement is for.   

You can attach ‘exhibits’ to your statement. An exhibit is evidence that supports your case that you need protection. An example would be  a print out of text messages your ex sent that are abusive. You need to number your exhibits and refer to them in your witness statement as Exhibit 1, 2 etc. For example, you might write ‘On 12 November Jamie sent me abusive text messages threatening to punch me. A copy of these messages is Exhibit 1.’ Then you get a blank piece of paper, write Exhibit 1 on it, and paste or photocopy those messages onto a page behind it. You can do this for as many exhibits as you want. In front of each exhibit you have a cover sheet that gives the number of the exhibit. 

You then attach your exhibits to the back of your witness statement. 

At the end of the template witness statement there is a cover sheet you can print and use.  

Send the court: 

• Your application form  

• Your witness statement 

You will need to send these to your local court. The addresses for these are on the 'Our Local Courts' page on this website. 

What happens next 

The judge will read your application form and witness statement. This usually happens quite quickly. The court will contact you to come and collect the court order.  

Serving the order  

Once you have the order, you need to arrange for the order to be personally served on the person the order is against. It has to be personally handed to them and cannot just be posted to them.   

You cannot hand it to them yourself (and this would not be safe). It is best to use a process server such as Taylor Investigations or a court bailiff, who will find the respondent and give them the order. If you want a court bailiff to serve the documents, complete form D89. There is no court fee for asking a bailiff to serve this type of order. A private process server will charge you.  

The return date  

The court will list a hearing. 

This might be because the judge has not made the order because he or she wants to hear both sides first. 

Or it could be because the judge has made the order without telling your ex first, and now wants to give them the chance to challenge the order. 

Either way, this hearing is called a 'return date'. Before the return date your ex will have the chance to write their own witness statement and get their own evidence together to say why your evidence is wrong. 

Tell your landlord or mortgage company 

You must also notify your landlords or mortgagees (the company you have a mortgage with) so that they can tell the court of any concerns they have. It is extremely unlikely that they will do this.  

Wait until you hear back from the court with the court date and then send that information to your mortgage company or landlord.  You must do this by post.  

If you rent, use the address your landlord has given for themselves on your tenancy agreement. 

If the house is owned with a mortgage on it, you need to post the information to the mortgage company. You can usually find their address on your mortgage statement. If you don't know where to send it, ring their customer services line or pop into a branch and ask them for the right address. 

At the hearing 

You and the respondent will give evidence at the hearing and the judge will decide whether to make the order or continue the order. You will have a chance to ask your ex questions about their evidence and they can ask you questions. However, they won't be able to speak to you directly. If they have a lawyer, the lawyer will ask the questions. If they don't have a lawyer, a judge will ask the questions. 

The questions will be based around your witness statement and your ex's witness statement. 

Most hearings are in the judge's office around a table and not in a big courtroom.  If you are worried about seeing your abuser at court, then ask for special measures. 

Undertakings  

It’s pretty common at the hearing for any lawyers involved to suggest that everything can be agreed and that your ex will give an undertaking to move out to move out by a particular date and not to contact you. This is instead of the judge hearing evidence. 

An undertaking is a solemn promise to the court. This would be written on the court order and signed, but it would not be under the bit that said ‘the court ordered’.  

An undertaking might be offered by your ex because it does not require the court to decide that it is true that your abuser is indeed abusive – they can just promise to move out. 

 This is obviously to their advantage, because they won't want a judge to issue a judgment that says they are an abuser.  

You may or may not agree that to an undertaking. The benefit to you is that it avoids the need for you to give evidence, or the risk of the court not believing you.  You can also rely on the undertaking as evidence of domestic abuse, in order to get legal aid, as long as you haven’t given an undertaking about domestic abuse yourself.  

Undertakings are enforceable, but only through bringing proceedings for contempt of court (see below). The police cannot arrest someone for breaching an undertaking. This means if they don’t move out or they harass you then you will need to return to court. 

The court is not allowed to accept an undertaking if there has been physical violence if the judge thinks that only an order will protect you.  

Enforcing an occupation order 

A breach of an occupation order can be addressed in one of two ways:  

• You can apply to court for the respondent to be held in contempt of court. Sanctions for contempt include a fine and/or imprisonment. This application needs to be done carefully as any errors will invalidate it.  

• You can ask the police to arrest the respondent for the breach, and take them through the criminal courts. This option is not available if you have got an undertaking but not an order.