When marriages breakdown and couples divorce, there are a number of important financial matters to sort out, including how assets will be divided, how children will be cared for and supported and what should happen to the marital home.
Quite often, the wife or mother and children would like to carry on living in the family home after a divorce and a Mesher Order, which is granted by the Court, can be a way of making this possible in the short term.
However, there are also some potential drawbacks to using a Mesher Order, so it important to be aware of how they work and the various issues involved before relying on this option to deal with your family home following divorce.
What exactly is a Mesher Order?
Mesher Orders are one way in which a judge and the divorcing couple can deal with a property when an immediate sale of the property or a transfer of equity to one party is not practical. They take their name from the case where this type of Order was first granted, which involved a divorcing couple named Mesher.
Sometimes also referred to as an ‘order for deferred sale’, a Mesher Order allows the sale of the family home to be postponed for a certain period of time or until a particular trigger event happens.
Common trigger events might be when the person living in the family home enters a new relationship and decides to cohabit with their new partner or to remarry; when children of the marriage are old enough to have finished their full time education or it can be a set date, agreed between the two parties.
Under the terms of the Mesher Order, the property will remain in the divorced couple’s joint names, on trust for sale, until a point in time when a trigger event occurs and the property can be sold and the proceeds of sale, divided.
Alternatively, the property can be transferred to the occupying ex, who is still living in the house and the non-occupying ex, who has moved out, will have a charge on the house, sometimes referred to as a ‘chargeback’.
What is the difference between a Mesher Order and a Martin Order?
A Martin Order is similar to a Mesher Order in that it applies to divorcing couples who have no children, where one party, usually the wife, wishes to postpone the sale of the property in order to carry on living in the marital home.
How do I apply for a Mesher Order?
If you and your ex can agree a financial settlement, then your solicitor can draft the financial agreement into an Order which is then sent to court for approval. The Order is then given by a judge and will come with various conditions.
If you and your ex cannot agree a financial settlement, then one of you would need to make an application to the court for a Financial Order where court proceeding would follow and the final Court Order being made at the end of the court proceedings.
What are the benefits of a Mesher Order? How a Mesher Order could be an option for you and your family
A Mesher Order may be worth considering if you are opting for an amicable settlement and wish to stay in the family home with your children, but are unable to meet your monthly payments or get a mortgage on your own.
In these circumstances, a Mesher Order will enable both you and your former spouse to remain on the mortgage. Whilst your ex may agree to pay you maintenance, having a Mesher Order does not necessarily mean that your ex will still have to contribute to the mortgage repayments.
In many instances, a Mesher Order may be the best way to meet the immediate housing requirements of you and your children which will always be the main focus and consideration of courts when deciding what should happen to your assets and property during a divorce.
Advantages of a Mesher Order can include:
- Avoiding the need to immediately sell of your family home, helping you to avoid the added disruption and stress of moving house during the emotional impact of a family break-up.
- Putting the welfare of your children first, protecting their best interests and minimising stress and disruption to their lives by allowing them to remain in the same home and school environment.
- Creating a stable home environment for yourself and your children whilst they still under the age of 18 or in full time education.
- Securing a home where downsizing or buying another property is not possible or will prove too costly because another mortgage may not be on the same favourable terms.
- Avoiding the circumstances of negative equity by delaying the sale of the property until a more favourable economic and financial situation would make a sale worthwhile.