During a divorce, separating couples face several challenges. However, deciding what to do with the family home is one of the most difficult and emotional issues to resolve.
When there is a dispute over this decision, especially if children are involved, the family courts are typically reluctant to order an immediate sale of the property. Forcing couples to sell the home can add to an already stressful situation and cause unnecessary upheaval. It is in these circumstances that Mesher Orders can come into play. They are legal mechanisms that defer the sale of the family home until a specific event occurs.
In this blog, our family law team provides information on how Mesher Orders are used in UK family law and answers a few frequently asked questions.
What is a Mesher Order?
A Mesher Order is a specific type of property adjustment order in connection with divorce proceedings or judicial separation that is made under section 24 of the Matrimonial Causes Act 1973. Its purpose is to postpone the sale of a family home following divorce or the dissolution of a civil partnership.
How a Mesher Order works:
- Rather than selling the property immediately and splitting the proceeds, a Mesher Order postpones the sale until a specified event or time, sometimes known as a “trigger event”.
- A trigger event is typically when the youngest child turns 18, finishes full-time education, or the resident parent remarries or cohabits with a new partner.
- It is used to provide continued housing for a spouse and children when it is not practical to sell the home. Typically, the primary carer of the children continues to live in the property, often with the children, while both parties retain an interest in the property’s value.
When is a Mesher Order Used?
A court can make several decisions in relation to the sale of a property during divorce or civil partnership dissolution proceedings, and may decide to apply a Mesher Order if:
- There are dependent children involved who need stability
- The primary carer cannot afford to buy out the other party’s interest or obtain a mortgage in their sole name
- An immediate sale is not practical or would result in housing difficulties for one or both parties
- Both parties agree, or the court deems it fair, that the sale should be deferred to protect the children’s welfare
What Are the Associated Provisions of a Mesher Order?
The court can include various provisions and supplementary provisions, but the most common include:
- Which spouse will remain in the property: usually the primary carer of the children living in the home.
- Trigger events for a sale: the court can make an order for the sale of the property at the point of a trigger event, which is normally:
- When the youngest child turns 18 or finishes full-time education
- If the resident parent remarries or starts cohabiting with another partner
- When a fixed number of years has passed
- How the equity will be divided: The court can include provisions for dividing the proceeds of the property’s sale. This may be as an equal share, or in proportion to other settlements and provisions decided by the court or agreed upon by the parties.
- Financial responsibility: The order should clarify who has responsibility for mortgage payments and upkeep, detailing who pays what during the period of deferred sale.
What are the Advantages and Disadvantages of Mesher Orders?
There are various reasons a court may choose to grant a Mesher Order instead of an outright sale of the family home. A primary consideration will be for the welfare of the children, while also taking into account:
- Advantages of a Mesher Order
- Stability for children – allows them to remain in the family home and maintain a familiar environment during crucial years.
- Avoids a forced sale – protects against unnecessary financial loss or where one party does not have the financial means to rehouse or purchase the other’s share.
- Both parties retain equity – protects the property’s equity for both, allowing them to benefit from any rise in property value.
- Flexibility in how the order is granted – a court can tailor the provisions within the Mesher Order to suit the family’s needs.
- Disadvantages of a Mesher Order
- Delays financial closure – both parties remain financially tied to one another, which can be a source of ongoing conflict.
- Future disputes – disagreements over future maintenance, timing of sale, or changes in property value.
- Financial impact – the non-occupying partner may have to wait many years to access their share of the property’s value. Additionally, the non-occupying partner may face Capital Gains Tax liabilities if they purchase a new main residence before the former matrimonial home is sold.
Are there any Alternatives to a Mesher Order?
Depending on your circumstances, there may be more suitable options, including:
- Outright transfer of the property: the property is transferred to one party in exchange for a lump sum or adjustment to other financial provisions or division of assets.
- Immediate sale and division of proceeds: often suitable in situations where there are no children involved, or both parties have the means to rehouse.
- Martin Order: A Martin Order, like a Mesher Order, is used to defer a sale under Section 24 of the 1973 Act. However, a Martin Order is typically used when there are no dependent children to consider, and when one spouse cannot reasonably be expected to rehouse. Unlike a Mesher Order, which is linked to the trigger events mentioned above, the Martin Order allows one party to occupy the property for life or until they remarry.
Is a Mesher Order Right for You?
Mesher Orders can be highly effective, providing legal protections and preserving stability post-divorce, particularly for families with children. However, even in seemingly straightforward situations, Mesher Orders are not without complications and require careful consideration. It is crucial to seek specialist, independent legal advice from an experienced professional who can provide tailored guidance for your situation.
Our Family Law Specialists in Kingston upon Thames
If you are going through a divorce or separation and need advice on what to do with the family home, our highly experienced divorce solicitors are here to help. We can guide you through the long-term implications (financial, practical, and emotional) and provide tailored advice on property division, financial settlements, and child arrangements to support you through this difficult time.
We also offer specialist guidance for high-net-worth individuals and in multi-jurisdiction divorce and separation.
Talk to our specialist Family Law team via the links below.
This blog post is not intended to be taken as advice or acted upon. If you are seeking legal advice, please contact our team of solicitors.
