A Mesher Order is a Court Order that governs how the family home will be dealt with after divorce. A Mesher Order allows the sale of the family home to be deferred for a certain length of time or until a specific event takes place; such as when the kids leave school.
When a marriage breaks down, there are inevitably financial matters to be resolved. The Courts in England and Wales have very wide ranging powers when it comes to deciding how finances are divided between a couple and there are numerous options available on how the assets are dealt with, including what should happen to the family home.
Most people will be familiar with some of the more popular options. One is that the family home could be sold and the sale proceeds divided between the couple or another is that one person could buy the other out. But what if neither of these options are practical or there are young children and you want them to remain in their home? In this case, the Court can make a ‘Mesher Order’ in respect of the family home.
What is a Mesher Order?
A Mesher Order, also sometimes known as an ‘order for deferred sale’, is an order for the family home to remain in the couple’s joint names until a certain trigger event happens, at which point the property would be sold and the sale proceeds divided. These orders are known as ‘Mesher Orders’ as the idea originates from the Divorce case of a couple with the surname ‘Mesher’.
Why Seek a Mesher Order?
You may want to seek a Mesher Order if you wish to remain in the family home with your children, but do not have the financial means to take over the mortgage on your own. This would usually mean the property cannot be transferred into your sole name and so you would need your former spouse to remain on the mortgage. This does not necessarily mean they will still have to contribute towards the monthly repayments.
Common Trigger Events
When there is a Mesher Order, there will be a list of events which would trigger the sale of the property and it would be the first of the events to occur that does this. Common trigger events are:
- The remarriage of the person living in the property
- Cohabitation for a defined period (usually six months)
- The youngest of the children reaching a certain age or point of education (usually 18 years or until they have left full time education).
It is also possible to agree a set date as one of the trigger events.
Problems with Mesher Orders
Mesher Orders are often seen as an imperfect solution as it means that both people are still tied to each other financially. Also the person remaining in the property will then have to leave at a point in the future (when they may not want to) and the person not living at the property will have their capital tied up in it for a number of years.
However, in some cases, it is the only option available to accommodate the housing needs of both people (and their children). This is the Court’s main consideration when deciding what should happen to the assets in a divorce.
How to Obtain a Mesher Order
If you and your former spouse are able to reach an agreement in relation to finances between yourselves, then your Solicitor can draft this into an order and send this to the Court for approval.
If you are not able to reach an agreement, one of you would need to make an application to the Court for a Financial Order. Court proceedings would then follow with a final Court order being made at the end of the proceedings.
Given the range of Court orders available in divorce financial matters, it is always best to seek legal advice to explore the options available and establish what best suits your individual circumstances.