A Mesher order, named after the family whose case established this arrangement, is a court order concerning the family home following a divorce. It functions as a deferred sale order, allowing the property to remain in the joint names of the couple until a specific trigger event occurs. This option is exclusive to married couples undergoing divorce proceedings.
In typical divorce scenarios, the court may order the sale of the property, divide the proceeds, or transfer ownership of the property from one spouse to another, possibly in exchange for a lump sum payment. However, if there isn’t enough equity to purchase suitable alternative accommodation or if one spouse lacks the financial capacity to secure a mortgage, these standard orders may not be practical.
If it is deemed necessary to retain the family home as the primary residence for the children following divorce, the court may implement a Mesher order. This means that the sale of the property can be postponed until it becomes financially or practically feasible to proceed with the sale. In this situation, one spouse will need to wait for their share of the property’s value.
For comprehensive guidance on Mesher orders and divorce financial settlements, consult our specialist family law solicitors. They possess the expertise to provide detailed advice tailored to your specific circumstances.
How does a Mesher order work?
A Mesher order establishes conditions or “trigger events” that determine when a property can be sold. These events could be based on changes in financial or employment circumstances over a specific period, or upon specific milestones, such as the youngest child completing schooling. Remarriage or reaching a defined period of cohabitation are also typical trigger events.
This delay in selling the property aims to provide stability in housing until certain conditions are met: until children no longer require a home, until a spouse can resume employment or afford to buy out the other’s share, until downsizing becomes feasible, or sometimes, until market conditions become more favourable.
What are the disadvantages of Mesher Orders?
The primary drawback of a Mesher order is that it maintains financial ties between divorced spouses. This can create practical challenges, particularly concerning the mortgage on the property. The spouse, who no longer resides in the family home, must wait until the property is eventually sold to receive their share of the equity. This delay may hinder their ability to secure a suitable mortgage or purchase a new property.
Additionally, managing property maintenance costs and potential increases in property value must be planned for, along with ongoing mortgage repayments and bills.
The spouse residing in the home may face restrictions on relocating to another property and may experience scrutiny regarding their relationship status, knowing that their current residence is temporary.
These considerations are crucial factors that must be carefully evaluated before your solicitor prepares a Mesher order for submission to the court for approval.
How likely is a mesher order?
Due to the drawbacks outlined, Mesher orders are typically considered only when alternative options for meeting housing needs are not feasible, with the welfare of children being the primary concern.
In situations where young children are involved, one party has limited mortgage capacity, equity is restricted, and property prices are high, Mesher orders become more likely.
It’s important to note that Mesher orders can only be granted after divorce proceedings; therefore, they are not applicable to unmarried parents.
In rare circumstances, a property sale delay may be possible for unmarried parents, but this process is intricate. We strongly advise seeking legal counsel from an experienced solicitor for guidance tailored to your specific situation.
How do I obtain a mesher order?
If you and your former partner can mutually agree that this is the most suitable option for your family circumstances, your family lawyer can incorporate this into a financial settlement and prepare a consent order to submit to the court for approval.
However, if an agreement cannot be reached, you will need to file an application with the court. This will initiate court proceedings, culminating in a final order being issued at the conclusion of the proceedings.
Can I refuse a Mesher order?
Agreeing to a Mesher order is not mandatory. However, if you and your former partner cannot reach a mutual agreement, your former partner may choose to apply to the court, which will then decide whether to implement a Mesher order.
Are there any alternatives to a Mesher Order?
A Martin order may be more suitable for divorcing couples without dependent children. This type of order is granted when the court determines that one party in the divorce has sufficient means to support themselves without relying on the capital that will be realised from the sale of the marital home. Similar to Mesher orders, Martin orders have several disadvantages that make them unsuitable for many divorcing couples.
Our solicitors are here to help
Mesher orders can be highly intricate and may not be appropriate for every divorcing couple. It’s crucial to assess whether a Mesher order aligns with your specific circumstances and to understand how a specialised family law solicitor can assist you.
If you require guidance on Mesher orders, our team of family law solicitors will collaborate with you to offer personalised advice tailored to your situation. We will clarify the necessary steps and ensure that the information is presented in a clear and straightforward manner.
