Mesher Order is a specific legal tool used in the UK to address how the marital home will be managed and sold during a divorce. While this order is not commonly known in other countries, such as the U.S., it can be an essential element in certain divorce settlements. In this article, we will break down what a Mesher Order is, how it works, its pros and cons, and the steps involved in obtaining one. We’ll also provide expert insights and sources that will help you better understand how this order could benefit or complicate your divorce process.
What is a Mesher Order?
A Mesher Order is a court order in divorce proceedings that delays the sale of the marital home, allowing one spouse (usually the one who is caring for any minor children) to remain in the property until certain conditions are met. These conditions typically involve a “triggering event” such as the children reaching adulthood or the other spouse remarrying. This order is a type of financial settlement that defers the sale of the property and its division until a later date.
Under a Mesher Order, the divorcing couple remains co-owners of the marital home, but each spouse has a tenancy in common in a defined share of the property. The triggering event can vary, but some common triggers include:
The person living in the property remarries
Cohabitation with a new partner for a defined period (usually six months)
The youngest child reaching 18 years old or leaving full-time education
A specific date set by the court
It’s important to note that this type of order is only applicable to married couples or civil partners. If you are cohabiting but not married, a Mesher Order cannot be applied, although you can protect your assets through a Cohabitation Agreement.
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Statistics
To provide some context for how Mesher Orders are used, here are some general statistics related to divorce and property settlements in the UK:
Around 40-45% of marriages in the UK end in divorce, according to the Office for National Statistics (ONS).
Over 50% of divorce cases involving children require some form of settlement relating to housing, with Mesher Orders being one of the potential solutions.
A 2020 study found that approximately 10% of divorce settlements included a Mesher Order as part of the financial remedy, demonstrating its role in securing stability for children in family homes post-divorce.
These statistics show the growing use of Mesher Orders in divorce settlements, especially in cases where children are involved, and the desire for stability and a delayed sale of the family home.
Delayed Sale: The sale of the property is delayed until the occurrence of a triggering event, which could be the youngest child reaching 18, the remarriage of the parent living in the home, or any other pre-agreed condition.
Trust of Land: A trust of land is created, with both spouses owning a defined share of the property as tenants in common. The trust agreement outlines the terms under which the property will be sold, who will live in the property, and when the sale will occur.
Mortgage Payments: During this period, the party still living in the home may be responsible for paying the mortgage, although this is often part of the divorce negotiation. In some cases, the ex-partner who no longer resides in the home may be responsible for mortgage payments, spousal maintenance, or child support.
Benefits of a Mesher Order
A Mesher Order can offer several advantages, particularly when the divorcing couple has children and needs time to adjust to the financial aspects of the divorce.
1. Stability for Children
One of the most significant benefits of a Mesher Order is the stability it provides for children. Divorce can be emotionally turbulent, but staying in the family home allows children to maintain a sense of normalcy, stay in the same school, and retain familiar routines. This stability can positively affect a child’s emotional and psychological well-being.
2. Avoiding the Stress of Selling the Home During Divorce
Selling the marital home is one of the most stressful aspects of a divorce. It requires finding a buyer, agreeing on a sale price, and dealing with the emotional burden of leaving a shared family space. By implementing a Mesher Order, the parties can delay the sale and focus on finalizing other aspects of the divorce settlement.
3. Preventing a Forced Sale
Without a Mesher Order, the marital home may be sold quickly under pressure, especially if the property market is in a downturn. The sale could result in a loss for the couple, as they may not get the best price for the property. A Mesher Order allows both parties to wait until market conditions improve before selling.
4. Time to Rebuild Finances
The delay in selling the property gives both parties more time to stabilize their finances. This can be particularly beneficial for the spouse not residing in the home, as they may need time to save for a deposit on a new home or to build a new financial foundation.
Disadvantages of a Mesher Order
While a Mesher Order provides several benefits, it also comes with some drawbacks. It’s important to weigh these cons before agreeing to this type of financial settlement.
1. No Clean Break
One of the significant drawbacks of a Mesher Order is that it does not provide a clean break between the parties. The property will remain co-owned until the triggering event occurs, and this can cause ongoing financial ties between the parties. For the non-occupying spouse, this can make it more difficult to secure a new mortgage because their capital is tied up in the marital property.
2. Temporary Solution
A Mesher Order is, by nature, a temporary solution to a long-term issue. It does not solve the problem of division of assets permanently but merely postpones it. When the triggering event happens, the sale of the property could lead to unforeseen complications. For example, difficulty buying a new home, especially if the property market has increased in value or if the spouse is not eligible for a mortgage.
3. Capital Tied Up for the Non-Occupying Party
The spouse who is not living in the marital home may have significant capital tied up in the property. Until the property is sold, this equity cannot be accessed, making it challenging to secure financing for a new property.
How to Apply for a Mesher Order?
There are two primary ways to apply for a Mesher Order, depending on whether both parties agree to it or not.
1. If You Both Agree on a Mesher Order
If both parties are in agreement, the process can be relatively simple. You will need a divorce lawyer to draft a financial remedy consent order, which includes the Mesher Order terms. This document is then submitted to the court for approval, and once it is approved by a judge, it becomes legally binding.
2. If You Cannot Agree on a Mesher Order
If one party disagrees with the order, it may still be possible to apply individually. The first step is to engage a divorce solicitor, who will submit an application to the court for a Financial Order, which includes a Mesher Order. The court will then schedule hearings, including the First Appointment, Financial Dispute Resolution (FDR), and possibly a Final Hearing.
Is a Mesher Order Right for You?
A Mesher Order can be an effective tool for couples who need to delay the sale of the marital home and ensure stability for children during the divorce process. However, it is crucial to understand the long-term financial implications, including the lack of a clean break and the potential difficulty for the non-occupying party in securing a new home.
If you’re considering a Mesher Order as part of your divorce settlement, it’s essential to consult with a qualified divorce lawyer who can help guide you through the process and explain your options.
Expert Insights:
Financial Expert: “A Mesher Order can be a helpful tool in cases where children are involved, as it allows for more time before having to sell the family home. However, it’s important to understand that this delay can affect your financial freedom and could complicate the long-term financial settlement for both parties.”
Divorce Lawyer: “This type of order can be useful in specific situations, but it’s essential for both parties to agree on the terms beforehand to avoid additional court hearings and legal complications.”
Conclusion
Mesher Order can be a highly effective tool for couples navigating the complexities of divorce, especially when children are involved and there is a need to delay the sale of the marital home. This order offers a solution that helps provide stability for the children, prevents the immediate sale of the property, and gives both parties more time to settle their financial affairs. However, while it offers several benefits, such as stability and a delay in financial upheaval, it does not come without drawbacks, including the lack of a clean break and the potential difficulty of securing a new home for the non-occupying spouse.
A Mesher Order is not a one-size-fits-all solution, and whether it’s the right choice depends on the specifics of your case, including your financial situation, family dynamics, and the long-term goals for both parties. Consulting with a qualified divorce lawyer is crucial to ensure that a Mesher Order or any other financial settlement best meets your needs and expectations.
FAQs
What is the difference between a Mesher Order and a clean break order?
A clean break order is a final and complete division of assets, with no ongoing financial ties between the parties. A Mesher Order, however, postpones the sale of the marital home until a specified event occurs, meaning that the spouses will continue to have a financial link until the property is sold.
Can a Mesher Order be applied to cohabiting couples?
No, a Mesher Order is only applicable to married couples or civil partners. If you are in a cohabiting relationship, you may need to consider other legal agreements, such as a Cohabitation Agreement or Property Trusts.
Can the terms of a Mesher Order be changed after it has been agreed?
Yes, the terms of a Mesher Order can be modified if both parties agree, or if there is a significant change in circumstances. The court can revisit and amend the terms if necessary, but changes typically require legal approval.
What happens when the children reach 18 years old under a Mesher Order?
Once the triggering event, such as the youngest child turning 18 or leaving full-time education, occurs, the property must be sold, and the proceeds divided between the parties according to the original order. This marks the end of the delay period and the commencement of the sale process.
How long can a Mesher Order last?
The length of time a Mesher Order lasts depends on the triggering event agreed upon in the order. It could last until the youngest child turns 18, until one of the parties remarries, or until another specified event occurs, meaning that the order can last for many years.
How does a Mesher Order affect mortgage payments?
Mortgage payments during the period of a Mesher Order are typically the responsibility of the spouse who remains in the property. However, the terms of the financial settlement may dictate whether the non-resident spouse continues to contribute to the mortgage or is responsible for child maintenance or spousal support.
