Mesher Order

mesher order

This page was last updated on 1 January 2021

Mesher Order In 2021

One of hardest things to divide up on divorce is your family home because it probably is the most expensive jointly owned item and it has vast sentimental value. While less common these days, one option might be a mesher order, to allow one spouse to remain in the family home after divorce.

Topics that you will find covered on this page

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What is a mesher order?

A mesher order is issued by the court, and deals with what is done with the family home when a couple gets divorced. It means you can put off selling the house for either a set amount of time or until a trigger event happens.

The term mesher order comes from a case in the Court of Appeal, and they are sometimes called an order for deferred sale.

Why would you want a mesher order?

There are multiple reasons you would want to put off selling your family home, like waiting till your children leave home, or to give yourself enough time to afford the mortgage for somewhere else. For example, in the namesake court of appeal case, the wife wanted to remain in the home until her child turned 17.

Pros and cons of a mesher order?

The benefit of a mesher order is that you can keep hold of your home. However, some people view them as an incomplete solution. 

This is because you still have financial attachments to your former spouse. One person gets to live in the property, but not permanently, whereas the other person has their finances tied up in the property for years. 

The positives of mesher orders, and the disadvantages that come with them will be explored in more detail below.

Here is a short video looking at some myths around finances and divorce.

What are good reasons to get a mesher order?

There are multiple benefits, including:

  • Immediate sale of your property is not necessary, and you can live there for a number of years while you find your feet following divorce and can find another property.
  • Reducing the stress of moving in a still stressful time. 
  • You can do what is best for your family, especially your children, so they can stay in the home after the separation and keep going to the same school until age 18. 
  • One party or both parties may be unable to buy another home yet
  • You can avoid negative equity by putting off the sale of the house until a time which is better financially. 

What are the disadvantages of mesher orders?

There are however problems with this option, including:

  • It is harder to get a clean break from your ex following divorce where you are still financially tied to each other. Being financially independent may mean you can move on.
  • You will have to remain in communication with your ex even once divorce proceedings end, because you will still need to have discussions about the mortgage, insurance or property repairs.
  • If you are the party who moved out, having your money tied up in the matrimonial home might make it harder to buy another property.
  • It is not a long term solution for the spouse who will stay in the family home, because at some point they will have to sell.
  • When the spouse who remained in the home comes to selling they may find it harder to get a new home. This is because lenders consider how many more years you will work before giving you a mortgage
  • When the non-occupying spouse gets a payout from selling the home, if they already have bought another home, they may face a large capital gains tax bill.
  • If one of the parties faces bankruptcy, the trustees in bankruptcy might trigger a sale. 
enforcing a mesher order

What questions do I need to ask before asking my former partner to consider a mesher order?

If you are staying in the home, you need to think about what you are going to do when the time comes to sell the matrimonial home, either after your youngest child reaches 18 years old, or another event. Consider:

  • What will my income be, and how many more years will I work for?
  • What will my financial situation be, and will I be able to afford to buy a new home?
  • Is it likely I will get a new mortgage based on my finances?

"A mesher order is issued by the court, and deals with what is done with the family home when a couple gets divorced. It means you can put off selling the house for either a set amount of time or until a trigger event happens."

What does a mesher order until “further order” mean?

The term further order means that the parties can apply for the sale of the property to be allowed, before any of the trigger events occur. This is allowed, unless it defeats the intention of the initial order. 

What happens in the event the occupier wants to sell the property and get a new one?

The orders should make provisions for this event. Normally the new home will be held on trust for sale the same as the old one. The order should consider what will happen if the new house is more or less expensive. 

You should also get advice on how to draft the order to consider what will happen if one party wants to but the other’s interest in the property. There should be a liberty to apply provision so you can go back to court if need be. 

What is the difference between a Mesher and Martin order?

Both financial orders following divorce deal with what happens with the matrimonial home. A martin order is for when a couple does not have any children, whereas mesher orders are for when there are children from the marriage. 

mesher order mortgage payments

Who owns the property once you get a mesher order?

The parties will still own the property in both of their names on trust for sale until the trigger event. 

Once the trigger event happens and the sale of the house, the proceeds of sale will be split between the former spouses. 

It can also be done so that the party who stays in the house has the property transferred into their name, and the ex husband or ex wife who moved out following divorce will have a charge on the property, or a chargeback.

Who pays the mortgage with a mesher order?

It depends, you can draft the order to what suits you best. Most of the time, both parties will keep paying the mortgage, or whatever is necessary to meet both of your housing needs.

What are the possible trigger events?

Multiple trigger events can cause the property to be sold:

  • Your youngest child leaving school, full time education or turning 18
  • A set date or time period
  • The person living in the home getting remarried to a new partner
  • The person living in the house cohabiting with someone for a certain period of time, which is normally 6 months
mesher orders

What happens to the earnings from the sale of the property?

After the trigger event occurs, and the family home is sold, the equity will be divided between both parties. 

How much each partner gets will be in the order made during the divorce case. This could be based on a percentage, or a fixed sum for the spouse who remained in the home, or a deferred lump sum to the occupying spouse so they can get sole ownership in the family home. 

You should get advice on whether receiving a lump sum from selling your interest in the property will attract capital gains tax.

How do we decide what share of the proceeds of sale each part will get?

You need to consider the needs of both parties, including taking into account that the party who cares for the children is likely to have more costs. Normally the percentage proceeds of sale will be decided when making the order. However you do not have to do it like this, such as if one party’s disability makes their needs hard to predict. 

How does a mesher order work for the children of the marriage?

The court’s first consideration is any children in the family under the age of 18. 

Mesher orders can be good for the children’s interests because it prevents them being destabilised because they can remain in the family home, often until they finish full time education. Also, the carer of the children will not be destabilised by the sale of the home at this stressful time. 

trigger event

Can I get a mesher order if me and my former partner do not have a good relationship?

You may apply for a mesher order even if you and your ex do not get along well. However, you should consider the consequences of the order, and if this would cause further tension. You may make mesher order mortgage payments together, or have to pay for repairs. If you never want anything to do with your ex again after the divorce case, a mesher order is probably not for you.

Can a residence order be overturned?

If you and your former spouse can agree, you can apply to the changes to the residence order to be made into a consent order. Otherwise, you will have to initiate court proceedings in the family court to change the order. The court will consider the welfare checklist. 

Who gets to stay in the house during a separation in the UK?

When your house is registered in joint names, legally both of you are entitled to remain in the family home. Even if it is not in joint names, you can apply to register your matrimonial home rights with the land registry until the end of the divorce process. 

What happens if my former partner is trying to sell our family home without my agreement?

If it is registered in both of your names, you should immediately try to instruct a family lawyer. This is more vital if your house is not registered in both of your names. 

Can I force the sale of my house in a divorce in the UK?

Yes, you can issue proceedings to force the sale and get your share of proceeds of sale. The court will consider your respective financial situations, and make an order. 

What is an avoidance of disposition order?

This is an injunction, preventing one party from disposing of the property when the other party has a financial claim, or if they are trying to prevent the enforcement of an order, including enforcing a mesher order.

This can be before the disposition, or to set aside the disposition if it has already happened. 

How do I get a mesher order?

If you and your ex-partner can make a decision together about what you want to happen to your finances, divorce solicitors can draft an order and ask the court to approve it.

Otherwise, you have to apply for a financial order from the court. Before you do this, it is a good idea to seek legal advice. 

How much do mesher orders cost?

It will vary, and it is a good idea to get a quote from a divorce lawyer authorised and regulated by the Solicitors Regulation Authority

However, it will be cheaper if you can agree to the financial settlement you want together, then request a court order. If you have to go to court to reach an agreement, this could take a long time and will be expensive. Also there are multiple court orders a judge can make, so you may not get what you want. 

legal advice

What alternative options are there to a mesher order?

The court can make multiple types of financial settlement, and you should consider what you apply for. Some of these, like a lump sum order, can help you get a clean break following divorce. These include:

  • A transfer of property order, which would mean the property moves from joint names to one partner getting all of the equity.
  • Lump Sum order
  • Child maintenance
  • Spousal maintenance

Should I speak to divorce solicitors before considering mesher orders following divorce?

It is a good idea to see an authorised and regulated lawyer before applying for a mesher order. They can consider you and your spouse’s circumstances and if a mesher order is suitable. 

divorce case

More information related to family law

Clean break order

A clean break can be a good idea in circumstances where both partners can successfully be financially independent of each other following the divorce. As the name implies, this means they are fully separate financially.

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Consent order

Consent orders record what a divorcing couple have agreed to do about their finances. Having a formal agreement means that your former partner cannot make claims off you further down the line, long after your marriage has ended.

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Frequently Asked Questions

What is a mesher order?

A mesher order is issued by the court, and deals with what is done with the family home when a couple gets divorced. It means you can put off selling the house for either a set amount of time or until a trigger event happens.

Why would you want a mesher order?

There are multiple reasons you would want to put off selling your family home, like waiting till your children leave home, or to give yourself enough time to afford the mortgage for somewhere else. For example, in the namesake court of appeal case, the wife wanted to remain in the home until her child turned 17.

Advantages of a mesher order?

The benefit of a mesher order is that you can keep hold of your home. However, some people view them as an incomplete solution.

This is because you still have financial attachments to your former spouse. One person gets to live in the property, but not permanently, whereas the other person has their finances tied up in the property for years.

What does a mesher order until “further order” mean?

The term further order means that the parties can apply for the sale of the property to be allowed, before any of the trigger events occur. This is allowed, unless it defeats the intention of the initial order.

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