What is a Mesher order?
A Mesher order is a type of divorce financial settlement order issued by the courts to delay the sale of marital property (e.g. the marital home) for a certain amount of time or until a triggering event occurs. Mesher orders lead to the creation of a trust of land in which the divorcing parties own the marital property as tenants in common in defined shares. The order means that the sale of the property may be triggered by certain events, including:
- The person living in the property remarries
- Cohabitation for a defined period (usually six months)
- The youngest of the children reaches a certain age or point of education (usually 18 years or until they have left full-time education).
- A specific date – it is also possible to agree on a specific date for a triggering event leading to the sale of property.
It is important to bear in mind that couples who are not married (i.e. cohabiting) cannot apply for a Mesher order because they do not have the same legal rights as those who are married or in a civil partnership. However, if you are cohabiting, you can enter into a Cohabitation Agreement to help protect your assets.
Pros of a Mesher order
While Mesher orders are not appropriate in all financial settlements, they do offer several important benefits, including:
- Greater stability for children
- Avoid the simultaneous stress of selling a house and going through divorce
- Prevents a forced sale and
- Provides more time to build up finances
Greater stability for children
One of the most important benefits of a Mesher Order is that the children of the relationship can stay in the same home and school during their childhood. Allowing children to maintain their everyday routine following divorce can have significant benefits for their well-being and welfare.
Avoid the simultaneous stress of selling the house and going through divorce
Divorce and dissolution can be emotionally and practically difficult enough without going through the stress of selling the family home. With a Mesher Order in place, divorcing couples avoid the stress of selling their family home and just focus on the divorce process.
Prevent a forced sale
A Mesher order can stop the urgent sale of the marital home. This avoids the situation of the home being sold at a lower sale price if the property market is in a downturn. Rather, the ex-partners can wait until market conditions allow them to achieve a better return on the sale of the property in the future.
Gives you time to build your finances
By deferring the sale of the marital home, divorcing parties have more time to sort out their finances and save money to arrange their own separate mortgage. In terms of who pays the mortgage in a Mesher order, this is a matter for negotiation between both parties. For example, if the party who is not living in the marital home pays the other partner’s spousal maintenance, both parties may agree that they do not also need to contribute to mortgage payments.
Cons of a Mesher Order
As set out above, Mesher orders offer a few important advantages, but it is important to be aware of the disadvantages of this type of court order; these include:
- No clean break and continued financial ties
- Temporary alleviation of the issue
- Non-occupying party will have capital tied up
No clean break and continued financial ties
With a Mesher order in place, it is not possible to achieve a completely clean break between both parties. This is because both parties have an ongoing financial commitment that will not end until the triggering event occurs, and the marital home is sold. This may make it difficult for the party who is not living in the home to secure a new mortgage for their own home. There may also be capital gains and stamp duty implications of having a second property.
Temporary alleviation of the issue
Mesher orders offer a practical solution, but it is only a temporary measure. It may be when the trigger event occurs, and the occupying party needs to leave the marital home once it has been sold, they may not be able to buy a new home. This may be because they are not eligible for a mortgage due to their age or the increased price of property in the new market.
For this reason, another option to consider is a Martin order. A Martin order is an alternative to a Mesher order, which allows one party to occupy the marital home either for life or until remarriage.
Non-occupying party will have capital tied up
Another disadvantage of a Mesher order is that the non-occupying party has their capital tied up. If they have several hundreds of thousands of pounds tied up in equity in the property, this cannot be released until the property is sold in the future. Not being able to release the capital held in the property can also make it harder to get a mortgage without a large deposit.
How to apply for a Mesher Order
The process of getting a Mesher Order will depend on whether you and your ex-partner can agree on when the matrimonial home should be sold or not.
If you both agree to a Mesher order
If you can agree between yourselves, you will need to ask a divorce lawyer to draft a financial remedy consent order containing a Mesher order. This will then be sent to the court to be approved by a judge. Once approved, the consent order will be legally binding and enforceable by the courts.
If you do not agree with a Mesher order
You and your ex-partner do not have to agree on getting a Mesher order as it is possible to apply as an individual and ask the courts to decide for you. The first step is to engage a trusted divorce lawyer who can handle the process on your behalf and provide the representation and advice you need. Your divorce lawyer will make an application to the courts for a Financial Order, which includes a Mesher Order. It is possible to apply to the courts for a Financial Order once you have received a Conditional Order (decree nisi).
To apply for a Financial Order with a Mesher Order, your divorce solicitor will complete Form A (give notice of your intention to proceed with an application for a financial order) and send this to the financial remedy court (HMCTS Financial Remedy). If the application is approved, there are then three stages:
- First Appointment – This is a short hearing with the judge to discuss the Mesher Order application initially. Form E, which sets out the financial situation of you and your ex-partner, must be prepared and submitted before this appointment.
- Financial Dispute Resolution (FDR) appointment – during the FDR, the judge will endeavour to help you and your ex-partner come to an agreement without the need for a final hearing.
- Final hearing – if the FDR is not successful, the judge will make a final decision on your Mesher order at a final hearing.
