Mesher Orders and Martin Orders are family court orders concerning arrangements for the family home after divorce. They are both named after cases in 1980 and 1978 respectively and were popular in the 1980s and 1990s as a way of protecting the interests of a less well-off spouse, along with the couple’s children in the case of Mesher Orders. They were designed to deal with cases where there isn’t enough capital for both former spouses to rehouse themselves. If one cannot do so, even with their share of the profits of a sale, it is considered unfair for them to lose their interest in the equity of the property.
Mesher Order
A Mesher Order is essentially a postponement of the sale of a property for a specified period of time. They are made when children are involved. These orders allow one spouse and the children to remain living in the family home until the date the Courts have decided upon. Despite the occupation by one party, the property will remain in both party’s names throughout the period.
As for when a Mesher Order will end, this is usually either when the former couple’s youngest child turns 18 or as they complete their secondary education, whichever is later. However, the order can be extended in some circumstances, to cover the youngest child’s higher education.
However, there are many disadvantages with Mesher Orders:
- It is harder to get a clean break* following divorce because you are still financially tied to each other. Being financially independent may mean you can move on.
- Responsibility for maintenance, repair, insurance etc. needs to be agreed.
- This means you will have to remain in communication with your ex even once divorce proceedings end.
- The person who moves out of the property, will still have their money tied up in the matrimonial home might make it harder to buy another property.
- It is not a long term solution for the spouse who stays in the property, because at some point they will have to sell/buy/move out.
- When the house is sold, the spouse who has remained in the property may find it harder to get a new home, as they will have less working years to repay a mortgage.
- When the property is eventually sold, the non-occupying spouse may be liable for capital gains tax, if they have purchased another property.
- If one person faces bankruptcy, the trustees in bankruptcy might trigger a sale.
*Clean (financial) break =Fully separated from each other financially. Without a ‘clean break’ there is still the possibility of one person making a claim against their ex-spouse if their fortunes change, eg. they win the lottery or receive an inheritance.
Martin Order
Similarly, a Martin Order is also a postponement of the sale of the family home but this does not relate to the ages of any children. As a result, it is more commonly used when the parties in question have no children under the age of 18. With this type of Order the ‘trigger event’ (when the house must be sold) is obviously different. It can be the occupying party’s re-marriage or cohabitation with a new partner. However, in some instances the occupying party could be entitled to remain in the house for the rest of his or her life. The property would only be sold when that party dies.
Martin Orders are typically made when the Family Court concludes that one spouse does not need immediate access to the capital locked up in the couple’s former home, and that the less wealthy spouse would be unable to rehouse themselves if the former marital home was sold and their interest in the property was realised.
Information source: STOWE Family Law. www.stowefamilylaw.co.uk