What are non‑molestation and occupation orders?

Non‑molestation and occupation orders are types of court orders designed to protect individuals and regulate living arrangements in difficult or unsafe situations. While they are often mentioned together, they serve different purposes and apply in different situations. 

What is a non‑molestation order? 

A non-molestation order is an injunction granted by the court which prevents a person (the respondent) from ‘molesting’ the applicant (who is associated with them) or a relevant child under section 42 of the Family Law Act 1996. It is often used to protect an individual from violence, harassment or threats from the respondent. An occupation order may be granted for a duration determined by a judge at their discretion. The order can be granted for a specified period or an indefinite period, typically an order is granted for 3 months to 1 year.   

Although there is no definition of ‘molestation’ under the Act, types of behaviour which amount to molestation include:  

• Acts or threats of violence towards the applicant 
• Harassment or intimidation towards the applicant 
• Posting or publishing material about the applicant  
• Any of the above towards a relevant child 
• Interference with the applicant’s property without consent  

A non-molestation order protects the applicant from the types of the behaviour listed above by the respondent. The respondent is often a spouse, an ex-spouse, a partner or ex-partner, however the respondent can also be a relative (such as a child).  

Breach of a non-molestation order is a criminal offence and is arrestable, making it a robust tool for protecting the applicant. The order focuses on the personal safety of the applicant and any relevant child, and prohibits the respondent from committing the acts listed above. The court must have regard to the need to secure the health, safety and wellbeing of the applicant or any relevant child. 

What is an occupation order? 

An occupation order under the Family Law Act gives an applicant the right to temporarily occupy a dwelling-house (usually the family home). The court will decide who can live in part or all of the home, and the order may also exclude a person from the surrounding area. If the applicant has already left the family home, the order may allow them to return. 

The applicant may be a victim of domestic violence, and the court will consider the balance of harm to the applicant, the respondent and any children when deciding whether to grant the order. 

The length of the order will vary depending on the type of application made, but will typically be for a period specified by the court. The court will also have discretion as to whether to attach a power of arrest to the order, and this will not be done automatically. 

An occupation order doesn’t not determine ownership of a property. Although the respondent may be excluded from coming within a certain radius of a property, they may still have a legal and/or equitable interest in the property. Ownership will be governed by relevant UK property law.  

The order may, however, require the respondent to continue paying household bills and/or the rent or mortgage.  

An occupation order is often sought alongside a non-molestation order. While a non-molestation order prevents certain behaviours, without an occupation order the respondent may still live in the home, potentially undermining its effectiveness. Applying for both orders can provide more comprehensive protection, particularly where the parties continue to live together following domestic abuse. 

How do these orders differ?

Non-molestation orders  

• Used to protect the applicant from domestic abuse, harassment or threatening behaviour. Prevents the respondent from perpetrating certain behaviours against the applicant. 
• Power of arrest is automatically attached to the order.  
• May be relevant where the applicant and/or any children are victims of domestic violence.  

Occupation Orders  

• Used to allow the applicant to remain in the home. Determines who may occupy a home, and excludes the respondent from all or part of the home and/or the area surrounding the home.
• Power of arrest is not automatically attached to the order.   
• May be relevant if the applicant is a victim of domestic abuse, who resides with the respondent. The order gives the applicant the ability to remain in their home, instead of moving to temporary accommodation. 

Common misconceptions about these orders include:  

• “They are only used in extreme cases” – What amounts to an ‘extreme case’ is subjective. For these orders to be granted, abuse does not need to be physical. The court may grant these orders if there has been coercive and controlling behaviour, harassment or emotional/psychological abuse.  
• “They decide long‑term housing rights” – An occupation order is not a permanent solution, and does not determine long-term ownership of a home.  
• “A non-molestation order can remove someone from the home” – while the non-molestation order may prevent certain behaviours, without an occupation order, the respondent may still reside in the home.  
• “Occupation orders are only for homeowners or tenants”  - you do not need to be a named owner or tenant to apply for these orders. Rights may arise from cohabitation.  

When these orders are most commonly considered 

The court most commonly considers granting a non-molestation order when there has been, or there is a risk, of domestic violence. An occupation order may be considered where a non-molestation order alone does not provide sufficient protection,  particularly when the applicant and respondent are living together.  

Non-molestation and occupation orders are designed to provide immediate, temporary protective measures to the applicant. Deciding the appropriate order will depend on the facts of each case, and in some scenarios both orders might be required to provide effective protection. Anyone experiencing abuse or feeling unsafe should be encouraged to seek legal advice to decide whether these orders are necessary.  

Our content explained