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Mesher Orders, so called from the case of Mesher v Mesher  1 All ER 126, are the postponement of the sale of the former matrimonial home allowing one party to occupy the house and remain there. This becomes a realistic option when it is not possible to arrange for the sale of the home or transfer of it out of the joint names of the parties. The non-occupying party then has to wait to realise their interest in the property until some later trigger date or event. The property in question is then held in joint names on trust for sale. Alternatively, the property is transferred to the occupying party and the non-occupying party has a ‘chargeback’. The non-occupying party can realise their interest in the property upon certain trigger events, such as: –
The particulars of the trigger events and the extent of the non-occupying party’s interest in the property is a matter for negotiation.
Mesher orders often look attractive on paper to clients; for the occupying party, often wives being also primary carers for the children of the marriage, wanting to ‘stay put’ in the family home, and sometimes for the non-occupying party, often husbands, who will receive a deferred lump sum if the occupying party cannot afford to buy them out straight away.
However, Mesher Orders often produce far than satisfactory outcomes and really should only be considered a last resort in generally modest asset cases where the property is the only asset or the only significant asset. The Court will focus exclusively on the parties’ needs in these circumstances and the Court and the parties may have little option but to enter into such an arrangement where the alternative (for example, a sale of the property) would cause significant financial difficulties for one or both parties and, moreover, for the children whose needs must come first in any financial settlement analysis.
In summary, the pros and cons of Mesher Orders are set out below:
If you are considering a divorce, and are looking to a Mesher Order as the solution to your problem, you should instead perhaps consider it one of last resort. Full consideration needs to be given to the above factors and you should seek legal advice at an early stage for tailored advice to your family and financial circumstances.
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