When a married couple separates, as well as divorce proceedings, there are usually financial matters to consider. Often, a divorcing couple’s main concern is what should happen to the former family home.

In some circumstances, the former family home will be sold, or one may be able to ‘buy out’ the other’s interest and keep the property in their name. However, it may be that one of them needs to remain in the house in order to provide a home for the children, but they don’t have the resources to provide the other with any payment at the time, or to take over the mortgage on their own.

What is a Mesher order?

A ‘Mesher’ order, sometimes referred to as a ‘deferred order for sale’, is an order allowing one spouse to remain living in the family home with the children and for a sale of the property to be delayed either for a fixed period of time, or until a ‘trigger event’ occurs. When the property is sold, the net proceeds of sale will then be shared between them, sometimes equally or sometimes with one receiving a higher share, but their respective shares will be set at the time the Mesher order is made. It is referred to as a ‘Mesher’ order as it originates from a case in which the divorcing couples’ surname was Mesher.

What are ‘trigger events’?

A ‘trigger event’ is something that happens that ‘triggers’ the need for the property to be sold.

The common trigger events for a Mesher order include:

  1. The youngest child of the marriage reaching the age of 18 or all of the children of the marriage finishing full-time (secondary) education
  2. The spouse that has remained in the property remarrying, or living with a new partner for more than 6 months
  3. A change in residence of the children, for example if they move to live full-time with the other parent
  4. The death of the spouse that has remained in the property
  5. The spouse that has remained in the property no longer living there as their main home

What happens when a ‘trigger event’ takes place?

When a trigger event takes place, if the remaining spouse is still not in a position to buy out the other’s interest, the property would then need to be sold. The proceeds of sale will be divided in accordance with the percentages in the Mesher order.

What are the advantages of a Mesher order?

  • The parent with primary care of the children can remain living in the former family home. This provides consistency for the children and avoids the disruption of moving when they are already dealing with their parents’ divorce.
  • It may be that the parent with primary care of the children would not be able to buy a new property if the former family home was sold and would have to move into rented accommodation. Allowing them to stay in the home avoids capital being ‘wasted’ on rent. Hopefully the value of the home will continue to increase, and both spouses can benefit from this when it is sold.
  • It may be advantageous to delay the sale of the former family home if this would avoid selling it at a time when the property market is not doing well, or if there would be a financial loss. There may also be tax advantages, although this will depend upon the specific circumstances of the case.
  • A Mesher order can be tailored to the specific circumstances of the separating couple and allows some flexibility.

What are the disadvantages of a Mesher order?

  • Whilst a Mesher order provides stability in the short-term, the property will still need to be sold or transferred later.
  • The spouse that is no longer living in the home may not be able to purchase anywhere new, either because their capital is tied up in the property, or because they cannot get another mortgage. This means they may have to move into rented accommodation.
  • Both spouses will need to cooperate when it is time to remortgage, to ensure that the best rates can be obtained, and monthly payments remain affordable. If the relationship is (or becomes) contentious or fraught, this may later cause difficulties. It also keeps the separating couple financially tied to each other for longer than they may want.
  • The spouse remaining in the home will usually need to be able to meet the monthly mortgage payments on their own.
  • There may be capital gains tax liabilities for the spouse that has not remained living in the family home when it is later sold, depending upon their circumstances and if they have purchased another property.
  • The spouse remaining in the home may feel as though they cannot move on, as they will be aware that if they remarry or cohabit with a new partner, it will lead to the children losing their home as it then needs to be sold.

How do I obtain a Mesher order?

If you are both able to agree to a Mesher order, a solicitor can prepare a consent order to capture this agreement and send this to the court for approval. Even if you cannot reach an agreement without assistance, you should always consider other methods of dispute resolution such as mediation, or negotiation through solicitors.

If you are not able to reach an agreement, one of you would then have to make an application to the Family Court for a Financial Remedy Order. Depending upon the circumstances of your case, the court may then make a Mesher order.

Our specialist family lawyers can review your specific circumstances, and we recommend obtaining advice at the earliest opportunity.  We offer a free exploratory call so that we can match your specific needs with the right person in our family team.  For more information or to arrange an appointment with a member of our Family Team, please contact us on 01206 764477. The team can offer advice at one of our offices in Colchester, Chelmsford,  Frinton-on-Sea, Ipswich or Bury St Edmunds, or by telephone or video appointment.