A Mesher order is a court order that deals with the family home after a divorce. It is essentially an order for a deferred sale, with the property remaining in the couple’s joint names until a trigger event occurs. Taking its name from the family whose case first established the arrangement, a Mesher order is an option exclusively available to married couples undergoing divorce proceedings.
After a divorce, the court can order a sale of the property and division of the proceeds, or the transfer of the property from one spouse to another, sometimes in exchange for payment of a lump sum. However, if there isn’t enough equity to purchase suitable alternative accommodation or one spouse has little or no mortgage capacity, these orders are unlikely to be suitable.
If remaining in the family home is the only viable way of providing a home for the children of the family, the court can make a Mesher order. This means that the sale of the property can be delayed until it is financially or practically possible for the sale to go ahead. In such a case, one spouse has to wait for his or her share of the value of the family home.
Mesher orders, and divorce financial settlements overall, are topics that our specialist family law solicitors will be able to provide detailed guidance on.
How does a Mesher order work?
A Mesher order will set out conditions or ‘trigger events’ when it is expected that the property can be sold. This might be after a set period of time when financial or employment circumstances are expected to have changed or a specific event occurs, like the youngest child finishing school. Remarriage or a fixed period of cohabitation are also common trigger events.
The delay provides a period of housing stability until the children no longer need a home, one spouse can return to work or afford to buy the other out, downsizing becomes an option or, sometimes, market conditions are more favourable.
What are the disadvantages of Mesher Orders?
The obvious disadvantage is that the divorced spouses are still financially tied. Practically, there may be issues to address with the mortgage on the property. The spouse who is not living in the family home will have to wait until the eventual sale to receive his or her share of the equity. This means that he or she may be unable to obtain a suitable mortgage or buy a property of their own.
Managing the costs of property maintenance and increases in value need to be anticipated, while mortgage repayments and bills also need to be considered.
The spouse remaining in the home may have restrictions on moving to another property. He or she might also find their relationship status under scrutiny and, of course, will know this is not going to be a permanent home for them.
These are all important issues that will need to be assessed before your solicitor drafts a Mesher order to send to the court for approval.
How likely is a Mesher Order?
As a result of the disadvantages above, Mesher orders are only made if there is no other way of meeting housing needs. The children’s welfare will be the main consideration.
Where children are small, one party has little mortgage capacity, equity is limited and house prices are high, Mesher orders are more likely.
A Mesher order can only be issued after divorce proceedings, therefore, it is not an option available to unmarried parents.
Under very certain circumstances, a sale can be delayed if parents are not married but it is a complex process and therefore, we would always recommend seeking legal guidance from an experienced solicitor.
For more information on the rights of unmarried couples when living together and splitting up, click here.
How to get a Mesher Order?
If you are able to agree this is the best option for your family situation, then your family lawyer can include this in a financial settlement and draft a consent order to send to the court for approval.
If you are not able to agree, you will need to make an application to the court. Court proceedings would then follow with a final order being made at the end of the proceedings.
Can I refuse a Mesher order?
You do not have to agree to a Mesher order. However, if you and your former partner are not able to come to an agreement, they may see fit to make an application to the court who will then make a decision on whether an order should be put in place.
Is there an alternative to a Mesher order?
A Martin order may be more appropriate if a divorcing couple have no dependent children. Martin orders can be granted when a court determines that one party of a divorcing couple has the means to support themselves without having access to the capital that will be released when the marital home is sold. As with Mesher orders, there are several disadvantages to Martin orders which mean that they are unlikely to be suitable for many divorcing couples.
Our solicitors are here for you
Mesher orders can be very complex and may not be suitable for every divorcing couple. It is therefore vital to understand whether they would be right for your circumstances and, if so, how a specialist family law solicitor can help.
If you need advice on Mesher orders, our family law solicitors will work with you to provide tailored advice on your situation and the steps that need to be taken, ensuring that everything is laid out in as straightforward a manner as possible.
To take advantage of your free 30-minute consultation with an expert local family law solicitor, call 0800 321 3832 or complete our quick online form.
Richard England
Divorce and Family Solicitor Sutton Coldfield
