What is a Mesher Order?
A Mesher Order, also known as an order for deferred sale, is a court order commonly used in England and Wales to postpone the sale of a jointly owned asset, typically the family home, until a specific trigger event occurs.
Mesher Orders have become a valuable tool for some families, providing a stable home for children during challenging times. It allows the parties to maintain ownership of the property and continue living there until a later date, usually when their children reach a certain age.
There were around 80,000 divorces in England and Wales in 2022, a 29.5% decrease compared to 2021 (around 113,500 divorces) Source: ONS. However, around 14% of divorces go to a final court hearing, meaning they have already gone through negotiation, mediation, and litigation.
Whilst it's good that divorce rates have dropped, the data shows that Mesher Orders still may be required in numerous divorce proceedings to protect vital assets like the marital home.
How does a Mesher Order work?
Court Order
A court issues a Mesher Order as part of a divorce or separation proceeding. It specifies the conditions under which the property will be sold, such as a specific period or a trigger event.
Trigger Event
The trigger event is a predetermined condition to be met before the property can be sold. This could be a specific date, a change in circumstances (e.g., one party remarrying), or the occurrence of a particular event (e.g., children leaving home).
Joint Ownership
The property remains in the joint names of both parties until the trigger event occurs. This allows them to continue living in the home and share maintenance and utilities costs.
Deferred Sale and Division of Proceeds
When the trigger event occurs, the property is sold, and the proceeds are divided between the parties according to the terms of the Mesher Order.
The division of proceeds is typically based on factors such as the parties' contributions to the property, their financial circumstances, and any prenuptial or postnuptial agreements.
What are the common trigger events?
- Completion of the children's education - the most common trigger point where the property sale is delayed until the children reach a certain age or complete their education. This can be up to the age of 20 if your child stays in approved education or training.
- A change in financial or employment circumstances - if both or either party suffers a job loss or an increase in income, this could trigger the sale.
- Sale of another property - if one or both parties sell a different property.
- Specified time - you can specify a fixed period during which the parties must remain in the property.
- Mutual agreement - the parties can agree on a separate, specific trigger event such as when the property reaches a certain value.
Can I refuse a Mesher Order?
You have the right to refuse a Mesher Order, but the court can override this. It's important to consult with a legal professional to understand your specific circumstances.
The court has the power to enforce a Mesher Order if it deems it appropriate. The court will consider:
- The needs of the parties: Are there any financial or practical reasons why one or both parties need to remain in the property?
- The welfare of any children: If there are children involved, the court will consider their best interests.
- The result of an immediate sale: Are there significant financial disadvantages to selling the property immediately?
Do both parties have to agree to a Mesher Order?
Both parties do not necessarily have to agree to a Mesher Order. The court can impose a Mesher Order even if one party objects.
However, it's generally advisable for both parties to work together to reach a mutually agreeable solution.
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- Can my partner sell the house?
- What are my rights to stay?
- Am I due a share?
- Can I get my name on the legal title?
How common are Mesher Orders in family law?
Mesher Orders have become increasingly common in divorce proceedings, particularly when children are involved or when one or both parties need to remain in the property for financial or practical reasons.
The trigger event that initiates the sale of the property can be tailored to suit the specific circumstances of the case. For example, it could be the children reaching a certain age, a change in financial circumstances, or the sale of another property.
Mesher Orders can be modified or amended as circumstances change. If the parties' circumstances change significantly, they can apply to the court to adjust the terms of the order.
- As divorce rates have increased in recent decades, the demand for Mesher Orders has also risen.
- The increasing number of single-parent families and blended families has contributed to the popularity of Mesher Orders, as they can provide stability for children in these situations.
- Economic factors, such as rising housing costs and job insecurity, can influence the decision to obtain a Mesher Order.
While specific data on the frequency of Mesher Orders in England and Wales is limited, it is clear that they are a common legal tool in divorce proceedings. Many family law solicitors and judges are familiar with Mesher Orders and understand their benefits and limitations.
Mesher Order pros and cons
- A Mesher Order can help to provide housing stability for the parties, especially if there are children involved.
- The children will be able to remain in the same home and school environment. This minimises disruption to the family's life, avoiding the stress of moving house during an already stressful time.
- In some cases, a Mesher Order can be financially advantageous, allowing the parties to benefit from any increase in the property's value over time.
- Both parties stay on the property ladder whilst maintaining equity in the house and avoid selling the property whilst it's in negative equity, delaying the sale until a more favourable economic and/or financial situation arises.
- A Mesher Order can prevent the forced sale of the property, which can be a stressful and emotional process.
- A Mesher Order keeps both parties' capital tied up in the property, limiting their ability to invest or purchase other assets. In a divorce financial settlement, sometimes a clean break is best to move forward with your life.
- The future of the property remains uncertain until the trigger event occurs, which can create stress and anxiety for the person who remains in the family home. They might struggle to secure another mortgage when the trigger point occurs.
- A Mesher Order requires the parties to maintain communication and cooperation regarding mortgage payments, insurance, and general home repairs, even after the divorce process is finalised.
Alternatives to a Mesher Order
The court can use a clean break order for the immediate sale of the property and division of the proceeds.
The court can transfer ownership of the property to one party, often in exchange for a lump sum payment to the other party.
The court can order a deferred transfer of ownership, where one party will eventually acquire ownership of the property after a specified period.
Friends and family could get involved to help release the second party from mortgage obligations. They could either go on the mortgage or provide a lump sum to buy out the other party.
How much does a Mesher Order cost?
While it's difficult to provide an exact figure, here's a general breakdown of the potential costs involved:
- Solicitor fees: £2,000 to £5,000, however, these can be higher depending on the case. The fees charged by your solicitor will depend on their experience, expertise, and the amount of time spent on your case.
- Counsel fees: £2,000 to £3,000.
- Court fees: Court fees can vary depending on the specific court and the nature of the proceedings. However, they are generally in the range of hundreds of pounds.
- NOTE: These fees all exclude VAT.
More complex cases, such as those involving multiple properties or complicated financial arrangements, may require more time and effort from your solicitor, leading to higher costs.
If the parties have significant assets such as investments or businesses, this can complicate the division of assets and proceeds from the sale of the marital home.
Prenuptial or postnuptial agreements and trusts can also complicate matters. If one of these agreements contains specific instructions on the division of property upon divorce, these may override the terms of a Mesher Order.
For example, the agreement might stipulate that the property should be sold immediately and one party receives a specific share of the proceeds.
Are you separating from your partner?
If your partner is looking to force a sale, or if you want to delay your marital home sale, there are several orders available to protect your home.
We can help you make applications to court for these:
- A Mesher or Martin Order.
- An Occupation Order - allowing non-sale but someone must solely reside in the property.
- A Non-Molestation Order - stopping owners from being near each other or harassing one another.
Book a FREE* consultation with our solicitors below. We will discuss your options and provide quotes for the work; however, there is no obligation to pay for any of our services after the free meeting.
Case study: A Mesher Order in action
John and Sarah, a couple with two young children, are going through a divorce. They have been living in their family home, a three-bedroom house valued at £450,000, for the past ten years. John earns £40,000 per year, while Sarah earns £35,000 per year.
Both parties agree that it's important for their children to remain in the family home until they complete their secondary education. They consult with their family law solicitors and decide to seek a Mesher Order.
During the court proceedings, their solicitors present evidence to support their request, such as financial statements, evidence of the children's needs, and any other relevant factors.
The court grants the Mesher Order, specifying that the property will be sold when their youngest child turns 18 (the trigger event). Until then, John and Sarah will continue to live in the home, sharing the costs of maintenance, mortgage repayments, and utilities.
When their youngest child turns 18, the family home is sold for £500,000. After deducting any outstanding debts or mortgages, the proceeds are divided between John and Sarah according to the terms of the Mesher Order.
In the absence of any compelling reasons for an unequal division, John and Sarah divide the proceeds equally so each party receives £250,000 from the property sale. This does not include expenses such as Capital Gains Tax, solicitor fees, or estate agent fees.
Note: These figures are for illustrative purposes only and may not reflect the actual circumstances of all cases. It's important to consult with a legal professional experienced in family law for advice tailored to your specific situation.
Where does the term 'Mesher Order' originate?
A couple with the surname 'Mesher' divorced and the case was decided in 1973, but not published until 1980.
The case established a precedent for the division of matrimonial homes in divorce proceedings. The court's decision on how the home should be distributed served as a template for thousands of similar cases in the following years.
Mr. Mesher had already purchased a new property and Mrs. Mesher intended to remain in the former marital home with their nine-year-old child.
Their case was presented to the Court of Appeal which ruled that a trust was to be established for both parties, granting them equal ownership and then the home would be sold when their child reached the age of seventeen.
Mrs. Mesher could live there rent-free, but mortgage payments were shared equally between the two divorcing parties. Upon sale, the proceeds were divided equally.
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