Mesher Orders, named after the case Mesher v Mesher and Hall (1973), are a type of court order frequently used in family law to deal with the family home during divorce or separation proceedings. They are particularly relevant where children are involved or where it is not financially viable to sell the matrimonial home immediately. The core purpose of a Mesher Order is to postpone the sale of the family home until a defined future event occurs, often referred to as a “trigger event”. They are something that we very frequently look at in family mediation.
Uses of Mesher Orders
Mesher Orders are typically used in divorce or dissolution of civil partnerships when the parties agree that one of them, usually the primary carer for the children, remains in the family home. The court defers the sale of the home and the division of proceeds until an agreed-upon trigger event, commonly when the youngest child reaches 18 or completes full-time education. Other possible triggers might include the resident party remarrying, cohabiting for a specified period, or voluntarily deciding to sell the property, and part of the family mediation process is to decide on what those events should be.
We also decide the ratio in which the equity is to be divided once the sale has been made, and who will be responsible for paying for what in the interim period.
This arrangement provides a degree of stability for children and the residential parent, avoiding the disruption of a house move during an already challenging time. It allows the non-resident party to retain a financial interest in the property, with the expectation of receiving their share once the trigger event occurs.
Advantages of Mesher Orders
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Stability for children: Mesher Orders allow children to stay in the familiar family home during critical developmental years.
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Flexibility: Mesher Orders can be tailored to have specific trigger events suited to the family’s circumstances. These are agreed upon by the parties during the family mediation process.
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Fairness: Mesher Orders balance the interests of both parties, providing housing security for one while preserving the other’s future financial claim. The effect of this is that both parties remain on the property ladder.
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Avoids forced sale: Where there isn’t enough capital to rehouse both parties, it avoids the hardship of a forced sale.
Disadvantages of Mesher Orders
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Delayed financial independence: The parties’ financial ties continue, which can complicate future relationships or financial planning.
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Maintenance issues: Disputes can arise over who is responsible for mortgage payments, repairs, and insurance during the order’s duration.
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Market risks: Delaying the sale of the property exposes both parties to fluctuations in the property market.
- Overall cost: As the non-resident party is almost always living in rented accommodation, there is a higher overall cost and part of the family mediation must focus on who will be responsible for what.
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Legal complexity: Drafting effective Mesher Orders requires legal expertise to ensure all contingencies are covered.
In conclusion, while Mesher Orders can provide a compassionate and practical solution during divorce, especially for families with children, they require careful consideration. Both parties should seek legal advice to weigh the long-term implications and ensure a fair, workable arrangement. At Hampshire Mediation, we work to ensure that all the options are considered.
