This content applies to England only.
Housing laws vary between England and Scotland. Get advice relating to Scotland
This section is a guide to how the courts might be able to decide what happens to the home in the short-term. The orders it can make will depend on your rights and individual circumstances.
Use our relationship breakdown checker to see what your rights might be.
Why go to court?
You may have rights to the home already, for example, because you're married to or in a civil partnership with the owner or tenant. If your partner does not accept your rights, you might need to go to court to enforce them. Or, if you're a cohabitee without any automatic rights to the home, you can apply to the courts to give you rights on a short-term basis. See our page on your rights to return to the home.
What is an occupation order?
If you want the right to return to, stay in or exclude someone else from the home, you may be able to use an occupation order. Occupation orders can also enforce rights, as well as giving or ending rights to occupy a property. They can also be used to restrict someone's use of a property, for example, if you and your partner have to live in different parts of the same home. Occupation orders usually last a specific length of time and are supposed to be a short-term measure.
Who can apply for an occupation order?
Most people can apply for an occupation order, including:
- owners, tenants or people with beneficial interest
- the spouse or civil partner of an owner, tenant or someone with beneficial interest
- people who cohabit with (live with) an owner, tenant or someone with beneficial interest.
The type of occupation order you can apply for depends on your rights, eg which category you fall into from the above list. People from the first two categories can apply for any type of occupation order. People in the last category can only apply for certain types of occupation orders.
What can an occupation order do?
An occupation order could:
- allow you to stay in the home
- allow you to return to the home if you've left
- make sure that your partner only uses a certain part of the home
- prevent your partner from accessing the home
- prevent your partner from being able to visit the neighbourhood where your home is.
If you are an owner, tenant or someone with beneficial interest and you get an order preventing your partner from entering the home, this order will override the home rights that partner may have. If the person that is prevented from entering the home is an owner, tenant or someone with beneficial interest, their home rights will be suspended until the order states otherwise.
Getting an occupation order
You can apply for an occupation order at either the Magistrates' Court or the County Court; however it is advisable to get advice before applying for an occupation order. You may be eligible for free advice under the Legal Help scheme and/or may be eligible for representation to apply for an occupation order under Legal Aid (also known as Community Legal Service Fund). To find an advice agency in your area use our advice services directory. You could also try speaking to a solicitor, or contacting Community Legal Advice
How long might it take and what about costs?
Whether or not you have to pay court costs depends on your circumstances. A solicitor or Community Legal Advice can advise you on these costs.
You will not have to pay a fee if you are receiving:
- income support
- family credit
- advice from a solicitor under the Legal Help Scheme or represention under Legal Aid.
You can find out if you're eligible for legal aid using the legal aid calculator. How long your case will take will depend on your circumstances, although you can ask the court to look at your case urgently. You may wish to ask for some help filling in the necessary forms. When you have filled in all the necessary forms you take them to them to court, where they are checked and you are given a date for your hearing. The date you are given will depend on how busy the court are.
How courts decide whether to grant occupation orders
The courts will make their decision based on a number of factors, including:
- whether you are married or in a civil partnership
- whether you have children
- what the housing needs of you and your family are, and whether you've got any alternative places to stay
- you and your partner's income
- whether the order will have any impact on your health, safety or well-being
- your actions and behaviour
- whether you or your partner are tenants or owners.