Key Takeaways
- A Mesher order is a court order that delays the sale of the family home until a specific trigger event occurs, most commonly the youngest child reaching the age of 18 or finishing full-time education.
- During the delay period, one former spouse has the right to live in the property. Both parties remain joint legal owners with defined shares.
- Common trigger events also include the resident spouse remarrying, cohabiting with a new partner or voluntarily leaving the property.
- Mesher orders aren’t a clean break. They maintain a financial link between ex-spouses until the property is eventually sold.
- The non-resident party may face Capital Gains Tax (CGT) implications if they acquire a new main home before the Mesher property is sold.
When a couple divorces, deciding what happens to the family home is often the hardest part of reaching a financial settlement. Selling immediately and splitting the proceeds is straightforward in principle. But it’s not always practical, particularly when there are children living in the property and neither parent can easily rehouse themselves.
A Mesher order offers a middle path. The sale is postponed, the children stay put, and both parties retain their stake in the property until a defined point in the future.
In this article, we explain what a Mesher order is, how it works in practice and what triggers the sale, plus the advantages and drawbacks. Our divorce and family law solicitors at Osbourne Pinner can advise on whether this kind of arrangement might work for your situation.
What Is a Mesher Order?
A Mesher order is a type of property adjustment order made in divorce proceedings that defers the sale of the family home. It takes its name from the 1980 case Mesher v Mesher and Hall, in which this approach was first used.
Under a Mesher order, the family home isn’t sold immediately on divorce. Instead, both spouses remain on the title deeds as tenants in common, each with a defined share of the equity. One spouse has the right to stay in the property, typically the parent with whom the children live. The other spouse moves out but retains their financial interest.
The sale is then triggered by one of a set of agreed events. When that event occurs, the property is sold and the proceeds are divided in accordance with the percentages set out in the order.
What Triggers the Sale Under a Mesher Order?
The trigger events are defined in the order itself. They can be agreed between the parties or set by the court if the case goes to a contested hearing. The most common triggers are:
- The youngest child of the family reaching a specified age, most often 18 or 17, or completing full-time secondary education
- The resident spouse remarrying
- The resident spouse cohabiting with a new partner, usually for a defined period such as six months
- The resident spouse voluntarily leaving the property
- The death of the resident spouse
- A fixed date agreed between the parties or specified by the court
If the trigger events are being negotiated as part of a wider settlement, there is some flexibility to tailor them to the family’s circumstances. A family law solicitor can advise on which triggers are most appropriate.
When Do Courts Grant a Mesher Order?
A Mesher order is typically appropriate where there are dependent children in the family home, and where the resident parent can’t realistically rehouse themselves immediately after divorce. Courts will consider it where:
- There is not enough equity in the property for both parties to purchase new homes from an immediate sale
- The resident parent has limited mortgage capacity, making it difficult to take on a new property in their sole name
- The mortgage can’t be transferred into the resident parent’s sole name
- Keeping the children in the family home is clearly in their best interests
The court’s overriding concern is the welfare of any children involved. A Mesher order isn’t automatic simply because there are children. The judge will weigh up the benefits of stability against the financial interests of both parties before deciding whether a deferred sale is appropriate.
See also: What Is a Financial Remedy Order?
How Are the Shares in the Property Divided?
The Mesher order will set out each party’s percentage share of the sale proceeds when the trigger event occurs. This does not have to be 50/50. The division will reflect the overall financial settlement.
For example, if one spouse received a larger share of savings or kept a pension that wasn’t shared, they may receive a smaller share of the property equity to balance things out. Equally, if the resident parent takes on the full burden of the mortgage during the deferral period, the order may reflect that contribution.
The order will also set out who is responsible for the mortgage payments, buildings insurance and maintenance costs during the period before the sale.
What Are the Advantages of a Mesher Order?
The main benefit is stability. Children can remain in their home, school and community during and after the divorce, avoiding additional disruption at an already difficult time.
For the resident parent, a Mesher order provides time to improve their financial position before having to rehouse. Rather than being forced onto the rental market immediately, they have years to build savings, increase earnings or plan their next move.
For the non-resident party, their financial interest in the property is preserved and protected. They will receive their share of the equity when the property eventually sells, often at a higher value if the market has risen in the interim.
What Are the Risks & Drawbacks?
The most significant drawback is that a Mesher order doesn’t achieve a clean break. Both parties remain financially tied to each other and to the property for potentially many years. This can cause practical difficulties and friction, particularly if circumstances change or one party behaves unreasonably.
The non-resident party’s name typically remains on the mortgage. This can prevent them from obtaining a new mortgage elsewhere, as lenders will take the existing liability into account when assessing affordability. If the resident party falls behind on mortgage payments, the credit rating of both parties will be affected.
There is also a Capital Gains Tax (CGT) risk for the non-resident party. If they buy a new main residence before the Mesher property is sold, the family home may no longer qualify as their principal private residence for tax purposes. When it eventually sells, they could face a CGT liability on their share of any gain. This is a point that requires specific tax advice before any decisions are made.
Finally, there can be disagreements about property maintenance, improvements or the timing of the sale. Disputes years down the line are not uncommon.
What Is the Difference Between a Mesher Order & a Martin Order?
A Martin order is a related but distinct arrangement. Named after Martin v Martin (1978), it also delays the sale of the family home but is typically used in cases without dependent children, where one spouse would otherwise be left with nowhere to live. The resident party may occupy the property until they die, remarry or voluntarily leave.
Both orders delay the sale and preserve both parties’ interest in the property. The key difference is who benefits and why: Mesher orders prioritise stability for children, while Martin orders address the housing needs of a vulnerable or older spouse.
Alternatives to a Mesher Order
A Mesher order is one of several ways the family home can be dealt with in a divorce settlement. The alternatives include:
- Immediate sale with proceeds split according to each party’s share
- Transfer of the property into one spouse’s sole name, with the other spouse bought out or receiving other assets in lieu
- A charge or deferred charge on the property, securing the non-resident party’s interest without requiring joint ownership to continue
Which option is best depends on the equity in the property, the earning capacity of each party, the mortgage situation, the ages of any children and the overall shape of the financial settlement.
Related: How Is a Pension Split in Divorce?
Speak to a Family Law Solicitor about the Family Home
Working out what happens to the family home is one of the most significant decisions in any divorce. Whether a Mesher order is the right answer depends on your full financial picture, the needs of your children and what both parties can realistically afford. Getting the structure right from the outset avoids complications further down the line.
Please note that this article is for informational purposes only and does not constitute legal advice. We always recommend speaking to a qualified solicitor for advice tailored to your specific circumstances.
At Osbourne Pinner, our divorce and family law solicitors can advise you on all options for dealing with the family home, including Mesher orders, transfer of equity, immediate sale and deferred charge arrangements. We will help you understand the financial and tax implications of each approach before any decisions are made.
We offer a free 30-minute consultation to discuss your situation. You can speak with us via video call or visit our offices in Harrow, Canary Wharf, Piccadilly Circus or Manchester. To arrange your consultation, call 0203 983 5080, email [email protected] or complete the form below.
