When a marriage isn’t working out and divorce is either being considered or is already in process, it’s a good idea to get your financial affairs in order.
Part and parcel of doing so involves considering the impact a divorce might have on any shared property and finances.
This is where you may come across the term ‘mesher order’.
With years of experience in family law, our solicitors are on hand to simplify legal jargon in a way that everyone can understand.
Below, we explain what’s meant by a ‘mesher order’, when and why it was introduced, and whether you can enforce one.
We also explore whether obtaining a mesher order is right for you and your circumstances before taking a look at what happens to your mortgage agreement if you decide to obtain one.
What is a mesher order?
First, let’s explore the meaning of a ‘mesher order’. Put simply, a mesher order (also known as an ‘order for deferred sale’) refers to the postponement of a family house sale in a divorce case.
A type of settlement of property order according to section 24(1)(b) of the Matrimonial Causes Act 1973, a mesher order in family law prevents the forced sale of a shared property for a defined period, or until a trigger event occurs.
Based on the terms of a mesher order, the property will remain in both the names of the divorced couple until which time it can be sold, and any proceeds are divided between the two parties.
If one party occupying the home wants to remain, the property may be transferred solely to them while the individual that leaves will have a charge on the house.
This charge is secured against the property to protect the interest for the non-occupying individual. The chargeback will be paid back when agreed conditions are met to ensure a fair settlement for both parties.
When were mesher orders introduced?
Mesher orders take their name from the case when this type of order was first granted, which involved a divorcing couple named Mesher.
It originated in the 1980s following the divorce case of Mesher v Mesher and another.
This eponymous case gave its name to the order after the Court of Appeal allowed the wife to remain in the couple’s former matrimonial home with her child until the latter turned 17, or they were issued with a further court order.
How long does a mesher order last?
As mentioned above, a mesher order will last for either the set period as stipulated by a judge or until a trigger event occurs.
As a result, there’s no single period for the duration of every mesher order in divorce, but there are some common trigger events.
We explore these in greater detail below.
What events trigger a mesher order?
First, let’s explain what a trigger event is. It’s described by Investopedia as a ‘tangible or intangible barrier or occurrence which, once breach or met, causes another event to occur.’
More common trigger events that most people will go through during their life include losing their job or retiring, for example.
When it comes to trigger events of a mesher order, an example would be children in the family home turning 18, leaving full-time education, or leaving home.
Another is when an individual living in the family home meets a new partner and decides to live with them or remarry.
Is a mesher order a good idea?
A mesher order is a good idea for divorcing couples with children that cannot afford, separately, to buy their own households.
A mesher order therefore ensures that any children from the marriage are housed while both parties can stay on the property ladder – even if one of the individuals is not living in the family home and is renting separate accommodation.
If you’re unsure whether obtaining a mesher order is the right choice for your circumstances, seek professional legal advice from an experienced law firm.
What are the advantages of mesher orders?
The main benefit of obtaining a mesher order means you can limit the amount of stress and emotional disturbance dealt to family already dealing with a divorce.
This is because you won’t be forced to immediately sell your family home, helping to prevent more disruption affecting the children.
A mesher order helps to put the children first, allowing them to have a stable home and school environment until they either turn 18 or leave full-time education.
An order is also beneficial if buying another property is too expensive, or does not come with the same favourable terms as your current mortgage arrangement.
The non-occupying ex-partner would still be entitled to the house equity once the trigger event has occurred, allowing them to stay on the property ladder even if they cannot afford to purchase an additional home on their own.
Similarly, the sale of the house can also be postponed if the current financial climate would lead to negative equity, helping the property to eventually achieve a higher sale price.
Are there any disadvantages to mesher orders?
While mesher orders are designed to offer your household a degree of financial stability during what is often an emotionally-turbulent period, they are not without areas to consider.
While we’ll explore some of these areas below, we always recommend contacting a family law professional to ensure you receive personalised advice.
First, a mesher order can keep you financially connected to your ex-partner for longer than you’d like. If you’d prefer to have a clean break, a mesher order may not be the best choice.
Another disadvantage of seeking a mesher order is the fact that residence in the marital home is only a temporary solution. Eventually, following the trigger event of another court order, the home will need to be sold, so it’s important to have a plan and prepare yourself for when this day arrives.
It’s also important to note that any capital you have invested in the property will be tied up for a matter of months or even years. Without it, you could struggle to obtain a mortgage on another property or be required to rent an additional property for several years.
The non-occupying party would also be liable for capital gains tax if they decide to buy another home as their primary residence. In some cases, they would also still be liable, according to the terms of your mortgage contract, to continue paying their share of the mortgage. That often makes buying another property impractical.
Typically, there are more disadvantages for obtaining a mesher order for the non-occupying ex-partner, so it’s vital you do your research before going down this route.
Do both parties have to agree to a mesher order?
No, both parties of a divorcing couple do not have to agree to a mesher order in the UK. However, if you and your ex-partner do agree that a mesher order is the right option to protect your children and financial affairs, you can ask your solicitor to include it in a settlement agreement. Once the settlement has been drafted, it is sent to a judge to be approved.
In the event you cannot agree on a mesher order, an application should be sent to the court for a financial order (which is also referred to as the ‘contested’ route or an ‘ancillary relief order’).
Within this financial order, you should include a mesher order request. The court will then decide how your assets should be divided.
How do you enforce a mesher order?
Once you’ve applied for a financial order, you and your ex-partner will often need to attend an FDR (Financial Dispute Resolution) hearing to help negotiate settlement terms and avoid further litigation at your expense. An FDR hearing is the second that takes place once divorce proceedings have been initiated.
Ideally, an agreement will be reached between parties and a final order can be drafted for the judge to approve.
However, a final hearing can be scheduled if an agreement over the settlement is not reached.
If your ex-partner is unwilling to comply with a mesher order after it has been approved by a judge, then you can take legal action.
Are there any alternatives to a mesher order?
If you’re concerned about who is entitled to the family home, a mesher order is just one of the options you may want to explore.
Luckily, there are plenty of alternative legal routes and options if the disadvantages of a mesher order outweigh the benefits.
If there is enough equity in the family home, you may decide to simply sell the property and split the money between yourselves. It’s important to bear in mind, however, that you may not be able to afford a mortgage on your own.
Alternatively, if you have enough savings and want to stay in the matrimonial house, or you no longer want to remain in the property but don’t want your capital tied up, one partner could buy out the other.
However, this is heavily dependent on other funds or assets, and how they are divided in the financial settlement.
The final option would be halfway point between a mesher order and buying out the non-occupying ex-partner.
This would involve transferring a small percentage of ownership to the occupying partner.
The other party would therefore be entitled to a smaller share of the property once it is sold, but they still have quicker access to some of the property equity.
What happens to a mortgage with a mesher order?
While a mesher order means that a property remains in the name of both parties, this doesn’t automatically mean that the non-occupying ex must continue to make the mortgage repayments.
While this is sometimes the case, this will need to be negotiated and agreed to during your financial settlement hearings.
Seeking mesher order legal advice?
If you’d like to find out more about mesher orders from professionals with vast experience in family law, don’t hesitate to get in touch with the highly-knowledgeable team at Freeman Jones Legal.
We have years of experience and expertise supporting our clients with child custody agreements, cohabitation disputes, and divorce settlements.
When it comes to financial settlements following divorce, we can help you to resolve disputes using a combination of methods.
This includes mediation, skilled negotiation and, if necessary, representation in court proceedings. Instead of overloading you with legal jargon, we aim to make this process as straightforward as possible.
Thanks to our expertise and affordability, we pride ourselves on being one of the leading divorce solicitors in Chester. You can visit our offices in Wrexham, Liverpool, Warrington and even North Wales, so feel free to contact us and seek out our legal services no matter where you might be based in the UK.
After reaching out, we’ll be in touch to carry out a free 30-minute consultation during which we’ll find out more about your ideal divorce settlement and how we can help.
If you’re concerned about costs, feel free to explore our prices. We always aim to work with you and hope to deliver first-rate legal advice for affordable prices.