What is a Mesher Order?
A Mesher Order is a court order commonly used in financial proceedings when a couple get divorced or end a civil partnership with a civil dissolution to allow the deferred sale of the family home.
This arrangement typically allows one party (usually the main carer of children) to remain in the property until a specific “trigger event” occurs so that dependent children can continue to have a secure home.
Mesher Orders can be a solution where there are not enough assets to enable both parties to rehouse after a divorce or civil dissolution. They allow the financially weaker party time to plan for future. The party who is excluded from the family home for the duration of the Mesher Order (i.e the non-resident party) does not lose his or her entitlement to his or her share in the property. However, the non-resident party must wait until one of the trigger events discussed below before he or she can have his or her share. The extent of that party’s share will be set out in the Mesher Order and it will be expressed as a percentage share. This means that if property prices increase then the non-resident party will share in the increase. Conversely if property values go down that party will share in the “loss” on the sale of the family home.
A Mesher Order is not an automatic remedy just because one party is the children’s main carer. Each case will be considered on its own merits.
Our experienced family law solicitors can help you understand whether a Mesher Order is advisable and possible in your particular circumstances We can guide you through negotiations and the take legal proceedings if need be to help you achieve the outcome that you need.
In what scenarios is a Mesher Order possible or likely?
Common scenarios where a Mesher Order might be considered :-
- Children still at school – if there are children who need to remain in the family home to continue their education, a Mesher Order can provide stability and minimise disruption to their lives.
- Financial disparity – if one spouse has significantly less financial means than the other and cannot earn as much as the other going forward, a Mesher Order can provide them with a place to live for at least as long as the children are young. We have had to apply to the court for a Mesher Order on behalf of one of our clients in exactly such circumstances. We were representing the wife and the husband who was a very high-income earner did not accept that the wife did not have the financial resources to rehouse with their daughter but that he did. The court accepted our argument (that we had to properly support with evidence) that the wife should be allowed to remain in the family home upon a Mesher Order while the daughter was of school age.
- Health issues – if one spouse has health issues that require them to remain in the family home, a Mesher Order can be a helpful solution.
It’s important to note that the specific terms of a Mesher Order, including the trigger events and the division of proceeds, will depend on the individual circumstances of the case.
Key Trigger Events for a Mesher Order
The most common triggers are :-
- Children reaching a specified age – this is typically 18 or finishing full-time education.
- The remarriage of the party in the family home (i.e. the resident party) – a remarriage can provide additional financial resources and housing options. The law starts from the premise that the non-resident party should not end up funding the housing costs of the new spouse. While rare, it is possible to negotiate a continuation of a Mesher Order despite a remarriage as we did for one of our clients. In that case, the husband acknowledged the contribution to the marriage that had been made by the wife. The wife was in a new relationship and the husband did not want to prevent the wife from remarrying for fear of losing the family home while the children were still dependent. We therefore put a contractual term in the Mesher Order allowing the wife to remain in the family home even upon remarriage.
- The resident party cohabiting with a new partner – Unlike a remarriage which will automatically terminate the resident party’s right to remain living in the family home, whether cohabitation should be a trigger event will be at the discretion of the judge.
- Voluntary decision to sell – the resident party may choose to sell earlier than required, perhaps due to career moves or changing family needs. It is important that a Mesher Order is properly drafted to allow the resident party to sell the family home early. Failure to do so can result in protracted litigation where the non-resident party views his/her entitlement in the family home as a long term investment and opposes an early sale of the property.
- Death of the resident party – the property would be sold upon death of the resident party.
- Breach of occupation terms – if the resident party breaches any significant terms of the Mesher Order, this might trigger a sale of the family home. Possible financial complications with a Mesher Order.
- Mortgage – who pays the mortgage and what happens if payments are missed?
- Maintenance costs – who pays for routine maintenance and major repairs? A well-crafted Mesher Order should set out the details of which maintenance costs should be shared and which costs are the responsibility of the resident party.
- Insurance – the order should specify who should pay for the buildings and content insurance.
- Tax considerations – the tax position must be carefully considered as the non-resident party may face tax implications when the property is eventually sold.
Alternatives to Mesher Order
- Immediate sale and division – provides immediate capital but may cause significant disruption to children. The court will not allow a Mesher Order if both parties can afford to purchase separate properties. We have successfully opposed a long term Mesher Order proposed by a wife who wanted to remain the in the family home until the youngest child was 18 or completed full time university education. The court in that case ordered a sale of the family home when the youngest child was 13 years of age.
- Buy-out arrangements – one party purchases the other’s share of the property at an agreed value. This requires sufficient capital or mortgage capacity from the purchasing party.
- Martin Orders – similar to Mesher Orders but without children involved. These allow one party (usually older divorcing couples) to remain in the property for life or until remarriage.
- Deferred charge – the property will be transferred to the resident party but the non-resident party will have a charge (like a mortgage) against it. The percentage or amount is fixed at the time of divorce or civil dissolution but only paid when the property is eventually sold.
- Rental arrangements – property is retained but rented out, with both parties sharing the rental income and eventually selling at an agreed future date. We have negotiated such an arrangement on behalf of a client where the family home had already been sold and the sale proceeds divided. In this case there was an investment property in the wife’s name and on behalf of the husband we reached an arrangement that the investment property would not be sold but rented out and the rental income paid for the couple’s son’s school fees.
If you would like further information please contact Saika Alam or any of the other member of the family law team. Saika is an experienced family lawyer with over 30 years of experience. She offers an initial consultation for which she does not make a charge.
