A Martin order (also referred to as a Martin order divorce arrangement) is a type of financial order issued by the family court setting out how the former matrimonial home will be dealt with after divorce. Martin orders allow a former spouse to continue living in the former marital home while the other keeps a financial interest in it for the future. Using this approach, instead of selling the home straight away, the court effectively postpones the sale until a specific ‘trigger event’ happens. The sale may be triggered on:
- The death of the occupying spouse
- The occupying spouse remarrying
- The occupying spouse permanently living with a new partner, if this is written into the order, or
- The occupying spouse choosing to move out.
Once the triggering event takes place, the home can be sold, and the proceeds divided in line with the terms of the order. It is important to understand, however, that a Martin order does not usually give full ownership of the property to one person. It is a deferred sale arrangement, not a clean break in relation to the home.
A Martin order may be considered appropriate in situations such as:
- One spouse cannot afford to rehouse themselves due to low income, limited savings, or lack of mortgage capacity
- The other spouse can meet their own housing needs without needing the sale proceeds immediately
- There are no young dependent children, meaning a Mesher order would not apply
- One spouse needs long-term housing because of older age, poor health, limited earning capacity, or other vulnerabilities
In family law, the order may also create or confirm beneficial interests for both spouses. This means that even if only one spouse is named as the legal owner of the home, a Martin order can formally recognise that both spouses have a financial stake in the property, depending on how the order is drafted. In most cases, neither spouse can sell or remortgage the property without the consent of the other or an order from the court.
What are the differences between Martin order and Mesher order?
Martin and Mesher orders are both financial remedy orders that delay the sale of the family home. They allow one spouse to remain living in the property for a period of time. They also aim to protect each party’s share of the equity until the home is eventually sold.
There are some important differences between Martin and Mesher orders in terms of protection and triggering events.
Protection
A Martin order is focused on protecting the housing needs of a former spouse. It is often used where the need may last for many years, and sometimes for life. A Mesher order, on the other hand, is focused on protecting the housing needs of children. It delays the sale of the property so that the children can remain living in the family home.
Triggering events
Under a Martin order, the sale of the property is usually triggered by events linked to the occupying spouse, such as death or remarriage. In many cases, a Martin order can last for life.
Under a Mesher order, the sale of the property is usually triggered by child-related milestones, such as:
- The youngest child turning 18
- The youngest child finishing full-time education
- The occupying spouse remarrying
It is also important to note that trigger events are not fixed. The court, or the parties by agreement, can set different conditions depending on the facts of the case. This flexibility is one reason why legal advice is important when dealing with a Martin order or Mesher order.
Who pays the mortgage or costs under a Martin order?
There is no fixed rule about who pays the mortgage or household costs under a Martin order. This is because a Martin order does not automatically decide mortgage responsibility. It depends on individual circumstances, fairness, and each person’s financial capacity. The court will usually look at income, outgoings, and the overall financial settlement when deciding how costs should be met.
There are several potential scenarios. In some cases, the non-occupying spouse pays the mortgage. This is more common where they have a higher income, and the occupying spouse would struggle to meet the payments. The mortgage payments may be treated as a form of ongoing financial support.
In other cases, the occupying spouse pays the mortgage. This may happen where they have sufficient income or where the mortgage payments are relatively low. The court may see this as fair where the occupying spouse is receiving the benefit of living in the property.
Another option is to split the mortgage payments between both spouses. This can reflect shared responsibility for the asset and may be suitable where both parties can afford to contribute. Running costs such as utilities, council tax, insurance, and general maintenance are often paid by the occupying spouse. This reflects day-to-day use of the property, although the court can make different arrangements if needed.
