Mesher Orders explained
20 May 2021
A Mesher Order is a court order that says how the family home will be dealt with after divorce. A Mesher Order allows the sale of the family home to be pushed back for a certain length of time or until a specific event takes place; such as the kids leaving school.
When a marriage breaks down, there are often finances and property to deal with. The Courts in England and Wales have wide ranging powers on deciding how finances are divided between a couple. There are numerous options available when dealing with assets, including what happens to the family home.
Most people will be familiar with some of the more popular options; the family home could be sold and the sale proceeds divided between the couple or one person could buy the other out. But what if neither of these options are practical or you have young children that you want to keep in their home? In this case, the Court can make a Mesher Order for 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 this point the property would be sold and the sale proceeds divided between the couple. These orders are known as ‘Mesher Orders’ because the idea originates from the divorce case of a couple with the surname 'Mesher'.
Why get a Mesher Order?
You might want to apply for a Mesher Order if you want to stay in the family home with your children, but don't 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 doesn't 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. 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 get a Mesher Order
If you and your former spouse are able to agree what should happen to the 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 agree, 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.