When a couple divorces, one of the most contentious and emotionally charged issues is often what happens to the family home. In some cases, the court may decide to delay the sale or transfer of the home entirely – this is where a Martin Order comes into play.
In this comprehensive guide, we’ll explain what a Martin Order is, how it differs from other property orders in divorce cases and how it can impact your long-term property rights.
What Is a Martin Order?
A Martin Order is a specific type of court order issued during divorce proceedings that allows one spouse (typically the financially weaker or dependent party) to continue living in the former matrimonial home for the rest of their life or until they choose to leave. The order is made instead of an immediate sale of the property.
This type of order is named after the case Martin v Martin [1976], in which the court ruled that a wife should be able to remain in the home, even though the property was due to be divided between the parties. The order ensures housing security for one party, while still protecting the financial interests of the other.
How does a Martin Order work?
A Martin Order typically:
- Grants one spouse the right to occupy the home for life or until remarriage, cohabitation or voluntary departure.
- Delays the sale or division of the property until that time.
- Allows the other spouse to retain a financial interest in the property, which is realised once the property is eventually sold.
It is commonly used when selling the home would leave one party – often an older spouse or someone with limited income – without the means to secure alternative accommodation.
When is a Martin Order used?
Martin Orders are not commonly issued, but they are appropriate in certain circumstances. The court may consider a Martin Order if:
- The party remaining in the home is financially dependent, elderly or otherwise unable to buy or rent a new home.
- There are no dependent children, and a Mesher Order (which delays the sale until children turn 18) would not apply.
- The home was jointly owned, but selling it immediately would be unfair or create unnecessary hardship.
- One party’s financial needs are urgent, but the other party has housing needs that cannot be met without continued residence.
Martin Orders are often seen in cases where long marriages have resulted in one party sacrificing career prospects to raise a family or manage the household.
How is a Martin Order different from a Mesher Order?
While both are deferred sale orders, there are key differences:
- A Mesher Order delays the sale of the family home until a triggering event, such as the youngest child turning 18 or finishing education.
- A Martin Order delays the sale until the occupying spouse dies, remarries or voluntarily vacates the property.
In essence, a Martin Order provides lifetime occupation rights, while a Mesher Order focuses on providing stability for children.
What are the advantages of a Martin Order?
- Security of housing: The occupying spouse has the peace of mind of staying in their home, often for life.
- Avoiding forced sale: It prevents the hardship of having to downsize or relocate, especially later in life.
- Preserving financial interest: The non-occupying spouse still retains a financial stake in the property.
What are the disadvantages?
- Delayed access to funds: The spouse not living in the home may not realise their share of the asset for many years.
- Complex future disputes: Issues can arise if the occupying spouse remarries, cohabits or makes changes to the property.
- Limited flexibility: Once in place, Martin Orders can be difficult to modify unless both parties agree or circumstances significantly change.
What impact does a Martin Order have on property rights?
A Martin Order does not transfer ownership – it only affects occupation rights. Both parties may still legally own the home, and the non-resident spouse retains an equitable interest in the property.
That means:
- The occupying spouse cannot sell or remortgage the property without consent.
- When the order ends, the property is usually sold and proceeds are distributed according to the court’s original ruling.
- Any increase (or decrease) in the property’s value over time may affect the ultimate amount each party receives.
If the property is owned in one spouse’s name only, the Martin Order may create a trust of land, giving the other party a recognised beneficial interest.
Can Martin Orders be challenged or changed?
Martin Orders are binding, but they can be varied if circumstances change substantially. For example:
- The occupying spouse no longer needs the property (e.g., due to inheritance or new relationship).
- The financial needs of the non-resident spouse become urgent or change dramatically.
- One party fails to maintain the property or pay agreed costs.
However, challenging a Martin Order typically requires court approval and compelling evidence.
Who Gets the House in a Divorce?
Deciding who gets the house in a divorce depends on several factors, including the presence of children, financial resources and individual needs. UK courts aim for fairness rather than a strict 50/50 split.
If one spouse is the primary caregiver for children or has a greater housing need, the court may grant them the right to remain in the property – potentially through a Martin Order or Mesher Order. However, ownership and occupation are distinct. One spouse may have the right to live in the home while both retain a financial interest.
Who pays the mortgage under a Mesher Order?
When a Mesher Order is issued, delaying the sale of the family home until a specific event (such as children reaching adulthood), the mortgage responsibility can become complex.
Typically, the spouse remaining in the home is expected to pay the mortgage and related bills. However, if this is not feasible, the court may order the other party to contribute.
These arrangements can be negotiated during the divorce settlement and should be clearly outlined to prevent future disputes. Mortgage payments may also be considered when calculating spousal maintenance or child support obligations.
How does no-fault divorce influence Martin Orders?
Since the introduction of no-fault divorce in the UK, couples can now separate without assigning blame. While this streamlines the legal process, it does not change how courts assess financial remedies or property arrangements.
Martin Orders continue to be available based on individual needs and circumstances. Courts will still weigh fairness, housing needs, and available resources – regardless of why the marriage ended.
Should you consider a Martin Order?
A Martin Order may be appropriate if:
- You are close to retirement or unable to work.
- You are concerned about being forced to sell your home.
- You want to protect your long-term housing situation without losing your financial claim.
It is often used in high-asset divorce cases or where one spouse made significant non-financial contributions during a long marriage.
However, a Martin Order is not right for everyone. If you need access to your share of the property sooner – or if you expect financial or personal changes – it may be better to explore alternative arrangements.
Get expert advice on property and divorce settlements
Whether you’re seeking to stay in the family home or want to understand your rights to a property you no longer live in, our experienced divorce solicitors in London can help.
We offer a free 30-minute consultation to explain your options, including Martin Orders, Mesher Orders and other financial remedies. Call 0203 983 5080, email [email protected] or use the form below to get expert support from our family law and divorce specialists.
