One of you needs the house sold to buy a new home separately. The other doesn’t want the children to move mid-way through their GCSEs. Both positions are reasonable, but there’s no version of a straight sale that pleases both.
A Mesher Order is the arrangement the Family Court uses to hold that tension. It lets one of you stay in the property for a defined period, then sell it and divide the proceeds later. It might be just what you need for now, or it might just delay the problem. That all depends on your situation, and on how carefully the Order is drafted.
What is a Mesher Order?
A Mesher Order delays the sale of the family home. One spouse, usually the parent the children live with most of the time, stays in the property. The other keeps a defined share of the eventual proceeds but can’t touch it until a trigger event happens.
The name comes from a Court of Appeal case in 1973. Mr and Mrs Mesher couldn’t agree what to do with their home, and the court decided it should be held on trust and left unsold until their child turned 17. The arrangement has carried their name ever since.
Courts make these orders under sections 24 and 24A of the Matrimonial Causes Act 1973, which let them move property interests around and order a sale on whatever terms they think fit, including a delayed one.
Shares are usually set as a percentage rather than a fixed sum, so you both carry the potential risk and benefit of whatever the market does in the meantime.
What are the trigger events?
A trigger event is what ends the arrangement and starts the sale. You agree them when the Order is drafted, and they decide when you get your money, so think long and hard about these. Some common triggers include:
- The youngest child reaching 18, or finishing full-time secondary education
- The resident spouse remarrying
- The resident spouse living with a new partner for a continuous period, often six months
- An agreed calendar date
- The resident spouse choosing to sell, or dying
- Breach of the terms of occupation, for example failing to pay the mortgage
Whichever comes first ends the arrangement. Cohabitation causes the most trouble, because “living together” is far easier to argue about than a birthday, which is why it is so important that you have agreed-on definitions in writing.
Who pays the mortgage under a Mesher Order?
The Order will always say who is responsible for the mortgage. Usually this falls on the spouse living in the property, since they are the one getting the benefit of being there. Some orders split the mortgage where the resident spouse can’t manage it alone, and some credit those payments back against their share at the point of sale.
What the Order can’t do is change your position with the lender. If the mortgage stays in joint names you’re both liable for the full amount, whatever the Order says between you. If your ex stops paying, the arrears land on your credit file too, and your only comeback is against them.
Buildings insurance and repairs need covering as well. If the Order says nothing about who pays for a new boiler, that’s a likely argument down the road.
How likely is a Mesher Order?
Mesher Orders aren’t overly common. Section 25A of the Matrimonial Causes Act 1973 asks the court to consider whether it can end the financial obligations between you as soon as it’s just and reasonable. A Mesher Order does the opposite, so courts treat it as the exception.
Courts are most likely to make one where the children are settled and there isn’t enough equity to rehouse both parents separately, or where one of you has been out of work for a while and needs time to build back up to an income a lender will accept.
If there’s enough equity to rehouse you both now, even modestly, the court will usually prefer that. A Mesher Order is considered the failsafe for when the numbers don’t allow for anything else. If you’re at an earlier stage and still working out how the family home is divided, that’s the preferred approach.
Where Mesher Orders cause problems
The trouble with a Mesher Order is that the financial tie between you doesn’t end. Everything else in a divorce settlement pulls towards a Clean Break Order, and a Mesher Order goes against that. Decisions about the property will keep needing two signatures, potentially for years.
Paying rent while your money is locked up in a house you can’t live in is hard to sustain, and lenders will count the joint mortgage against your borrowing capacity even though you aren’t the one paying it. That’s why we recommend that if you’re the one moving out, you speak to a mortgage broker before you agree to anything.
Another factor to consider is how old you will be when a trigger order comes around. If you are in your mid-fifties by the time your youngest child turns 18, you will find getting a mortgage on a smaller share of the proceeds harder than you would if you were 40.
A Mesher Order is only as strong as the terms it’s written on, and those terms are hard to change once a judge has approved them. If a deferred sale has been suggested, by you or by your spouse, our financial settlement solicitors will tell you what it would mean for your finances over the next ten years, not just the immediate future.
Can I refuse a Mesher Order?
You can decline to agree to a Mesher Order, and if the two of you settle on something else the court will normally approve it. If you can’t reach an agreement and your spouse applies for a financial order, the court has the power to impose a Mesher Order.
If you want to avoid a Mesher Order, it is best to keep your arguments practical and grounded. Show the court what you could do with your share of the money now, what waiting will cost you, and how the children would still be properly housed if the house were sold. The judge wont give much weight if you simply say you want your money sooner; they want to hear tangible impacts.
What is a Martin Order? Should I get a Mesher or a Martin Order?
A Martin Order is similar to a Mesher Order, but for when there are no children in the picture. One spouse can stay in the property for life, or until they remarry or move in with a new partner, and the sale happens after that. It is most commonly used after a long marriage where one of you has a housing need that the other doesn’t. As you can imagine, it delays a sale considerably longer than a Mesher Order usually would.
What happens when the trigger event happens?
Following a trigger event, the house is valued and sold, and the proceeds are divided in the shares the Order sets out. If the resident spouse would rather buy the other out, the Order should explain how the property gets valued, who instructs the surveyor, and what happens if you disagree about the figure. When you write your Order, name the method in the Order itself: a single jointly instructed valuer, or an average of two valuations.
If one of you refuses to co-operate when the time comes, the other can apply to the court to enforce the Order. A judge can order the sale, put one of you in charge of it, and in some cases sign the transfer documents on behalf of the person refusing. However, this takes months, and the costs come out of the money you are hoping to receive.
Common questions
Can a Mesher Order be varied or ended early?
The property adjustment part of the Order is final once it’s made, and it can’t be changed, no matter how much your circumstances have. The order for sale under section 24A can be varied or discharged under section 31 of the Matrimonial Causes Act 1973, so while shares can’t be changed, timings can be. If you think you’ll need flexibility later, build it into the Order from the start.
What happens if my ex-spouse dies before the trigger event?
If your ex-spouse passes away, their share becomes part of their estate and passes under their will, or under the intestacy rules if they don’t have one, so you could find yourself sharing the house with their new partner or their adult children. It is best practice to update your wills as part of the settlement and consider whether death should be included as a trigger event.
Do Mesher Orders apply to unmarried couples?
The Matrimonial Causes Act only applies to married couples and civil partners. Cohabiting couples can reach a similar outcome under the Trusts of Land and Appointment of Trustees Act 1996, or through Schedule 1 of the Children Act 1989 where there are children involved. The process is different, and the court’s powers are narrower.
Is there a tax cost to delaying the sale?
There can be. Since 6 April 2023, separating couples have up to three years after the tax year in which they stop living together to transfer assets between themselves without capital gains tax arising at that point, and there’s no time limit at all where the transfer is made under a formal divorce agreement. A spouse who keeps an interest in the former family home can claim Private Residence Relief when it’s eventually sold, and someone who has transferred their interest but still receives a share of the proceeds can apply the same treatment. Tax isn’t something we can advise on, so take advice from an accountant alongside your solicitor.
Speak to a financial settlement solicitor in Bristol
Our team works with separating couples across Bristol, Clevedon and Portishead on every route through the family home: a deferred sale, a buyout, a straight sale, or a transfer balanced against pensions and savings elsewhere in the settlement. We’ll tell you honestly if we think a Mesher Order would store up trouble for you, and if it is the right answer, we draft the trigger events and the exit terms so they stand the test of time.
You don’t need to have decided anything before you speak to us. You don’t need your spouse to agree, and you don’t need your paperwork in order. We are here to help you work out your options and get organised, so come as you are.
Your initial consultation runs for up to 90 minutes, for a discounted 60-minute flat rate, and we’ll be clear about costs from the start so there are never any nasty surprises. All of our solicitors are members of Resolution, which means our starting point is always to keep conflict down and keep you out of court wherever we can.
Book your initial consultation, or call your nearest office:
- Clifton: 0117 375 1780
- Portishead: 01275 285 414
- Clevedon: 01275 741 202