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Mesher Orders - deciding what will happen to your family home after divorce

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.

What are the drawbacks of a Mesher Order? Why postponing the sale of your family home can be a bad idea…

While Mesher Orders can be a way of securing your current living arrangements for you and your children in the short term, this might not be the best long term solution for you, financially.

There are several drawbacks to Mesher and Martin Orders because they keep you financially tied to your ex. In many cases, it might be better for you to have a clean break, from the outset, so you can both move forward with your lives independently of each other.

 For example, if you are the one who has moved out, your share of the capital is still tied up in a property, that you no longer live in, making it harder for you to move on and purchase another property.

If you are the one still living in the marital home, you will still have to sell your property, at some point in the future, even if that isn’t what you want to do. When the time does come to sell, what position are you likely to be in? Will you have enough capital to buy another property? Will you be able to get another mortgage?

The person who remains in the family home can often find that, when they eventually come to sell, they are not left with sufficient capital to buy a new home. They may also struggle to secure another mortgage if they wait until later in their life to sell, as lenders will consider how many working years you are likely to have remaining before deciding whether to lend to you .

It is also worth noting that if, either you or your ex are considering using the property as a long term investment, hoping for a windfall on the sale, you may be hit with capital gains tax liabilities on receiving your pay-out.

Disadvantages of Mesher Order include:

  • The continued threat of uncertainty in the future as your marital home will still have to be sold at some point later on.
  • Not having enough capital when the property is eventually sold for both you and your ex to each purchase another property.
  • Having your capital tied up for a significant number of years.
  • Having a reduced mortgage capacity because of your increased age and reduced working life at the point when your property is eventually sold.
  • A capital gains tax liability if you are the non-occupying ex and you have already bought another property which you have used as your principal residence.
  • Having to be tied to your ex for longer than you might like, especially if your relationship is difficult and acrimonious.
  • Having to be in communication and dialogue with your ex over the matrimonial home for issues relating to mortgages, insurance and repairs.
  • Financial matters such as if you or your ex are facing potential bankruptcy which could then trigger an early sale by the Trustee in Bankruptcy

It is advisable to give very careful consideration to all of the above factors when deciding whether a Mesher Order is appropriate for your individual situation and the best way forward for you personally, legally and financially.

It is always a good idea to seek formal, professional advice from a qualified solicitor who will be able to advise you of all of the potential options and outcomes that will be available to you and establish what best suits your particular circumstances and whether a Mesher Order is the right option for you.

What alternatives are there to a Mesher Order? Other options you might want to consider…

Perhaps you would be better off negotiating for all the equity in the property so that you can finance another home for your family sooner rather than later?

Would you be better off holding out for a Transfer of Property Order, giving you all the equity in the house?

Mesher Orders maybe just one of the many options available to you and it is certainly prudent to think about the full scope of options that may be better suited to your circumstances with your solicitor. Other Orders which are available to a judge include, Child Maintenance, Spousal Maintenance, Lump Sum Order and Transfer of Property Orders.

Our expert divorce lawyers can advise you of your options and help determine whether a Mesher Order is right for you

If you are getting a divorce and are considering a Mesher Order as a potential solution to your future financial and living arrangements, our team of specialist divorce lawyers at Crisp & Co can give you expert and tailored legal advice on what a Mesher Order could potentially mean for you.

We recommend that you speak with one of our expert divorce lawyers, at the earliest possible stage in your divorce, so that we can advise you of all of your potential options, and the likely outcomes, in order to find a solution that best suits your family, financial and living requirements.

By taking the time to listen to you and understand your precise situation, your desired outcomes and your current needs, we can thoroughly advise you on your legal rights and options and the best ways in which you can secure the future for you and your family after a divorce.  Whatever your circumstances, we will work hard to ensure you reach a fair and prompt solution that works in the best interests of you and your family.

Our expert divorce solicitors at Crisp & Co offer dedicated support throughout the entire divorce process, offering practical steps forward, expert advice on all of the things you need to consider and help in resolving any potential issues, conflict or disputes that might arise.

 As members of Resolution, we are firmly committed to removing conflict from family law matters and strongly believe that a non-confrontational dispute resolution is always the best way forward. By adopting this approach, the need for any lengthy or costly court action can be avoided, enabling us to help you achieve a quick and efficient divorce, at a lower cost and in a shorter timescale.

Get in touch with our specialist divorce solicitors in London and the South East

If you would like to find out more about Mesher Orders and whether they are the right option for you or if you would like to discuss any property or finance matter relating to divorce, you can get in touch with one of our specialist divorce lawyers in London and the South East, today, by calling 020 3281 7886 or by completing the quick online contact form below.

Alternatively, if you would like to make an appointment or find out more about how our expert divorce solicitors in London and the South East can help you with any divorce related matter, you can speak to one of our dedicated team by calling 020 3797 4952 or by using the quick online enquiry form below to request a call back so we can get in touch with you, shortly.