Mesher Order: Is it the right choice for you?

Divorce can be a long and complicated process, with plenty of different legal rulings possible. One such ruling is a Mesher Order – an order that lets a divorcing couple postpone selling their home until a later date.

If you’re entering the early stages of a divorce, you might have wondered if a Mesher Order is the right choice for your family. Well, that’s what Sousa Law’s expert family law solicitors are here to help you decide. Read on to find out everything you need to know about Mesher Orders, from how they work to the many pros and cons of getting one.

What is a Mesher Order?

A Mesher Order, named after the case of Mesher v Mesher [1980] 1 All ER 126, is a court ruling that delays the sale of a marital home. This allows one half of the couple to continue living there until a specific time or event happens. It’s typically used when selling the house or transferring ownership is impractical.

How do Mesher Orders work?

With a Mesher Order, one partner (the occupier) remains in the home, while the other (the non-occupier) waits to receive their share of the property’s value. The order specifies how mortgage payments and other property costs are split during this waiting period.

Once the agreed-upon time arrives, the property is either sold and the proceeds divided, or it’s transferred to the occupier, who then owes the non-occupier a share of its value. This is called a ‘chargeback’.

Which events can trigger the sale of a property?

The non-occupying partner may be entitled to claim their share of the property under certain circumstances, such as:

• When the youngest child turns 18 or finishes full-time education.
• Upon the death of the partner living in the property.
• If the partner living in the property remarries.
• If the partner living in the property starts to live with a new partner.

The specific conditions for claiming a share and the exact amount involved should be agreed upon by both parties.

Is a Mesher Order worth getting?

On paper, Mesher Orders can seem appealing to both parties involved in a divorce. The partner staying in the family home (often the primary carer for children) can maintain stability for their family, while the departing partner can benefit from potential property value increases.

In reality, Mesher Orders often lead to unsatisfactory outcomes and should be considered a last resort. They’re only suitable for cases where the property is the sole or main valuable asset, and when selling it would cause severe financial hardship for either parent, impacting the children’s well-being.

Read on to learn more about the potential advantages and drawbacks of getting a Mesher Order.

Pros of a Mesher Order

• Postponing the sale can alleviate the pressure of a house move during an already emotionally challenging time.
• It allows children to maintain their familiar home and school environment, minimising disruption to their lives.
• It keeps the family unit together in a stable environment while the children are young.
• It can be helpful when downsizing is impractical, buying another property is costly or impossible, or when the current mortgage deal is more favourable than available alternatives.
• If the property is currently worth less than the mortgage, selling immediately might not be financially beneficial.

Cons of a Mesher Order

• A Mesher Order can provide temporary relief but often creates ongoing uncertainty, especially for the partner who continues living in the property.
• There’s a risk that the eventual sale proceeds won’t be enough for both parties to buy new homes, particularly as they get older and mortgage options become more limited.
• It can mean delaying the financial independence of both parents. This can be particularly challenging if the relationship is strained.
• Parties will still need to communicate and agree regarding contributions towards, for example, building insurance and structural repairs.
• The partner leaving the home may face a long wait to access their share of the property’s value, often years or even decades.
• If the non-occupier purchases a new main home before the current property is sold, they could trigger a Capital Gains Tax bill.
• When a property is sold, the occupying party is often shocked by the amount they owe the non-occupier. This is because the amount owed is usually a percentage of the sale price, not a fixed sum. The calculation is also based on the property’s value at the time of sale, which can be many years after the divorce, rather than its value at the time of the divorce itself.
• The risk of bankruptcy for either party could force an early sale, disrupting the original plan.

If you’re considering divorce and a Mesher Order seems like a possible solution, it’s important to carefully weigh up all the factors above. Seeking legal advice early on can provide tailored guidance based on your unique family and financial situation.

Talk to Southampton’s leading family law solicitors

At Sousa Law, we’ve helped countless couples in Southampton and beyond navigate the complexities of divorce. We believe in finding solutions that work for everyone, whether that means a Mesher Order or something entirely different.

Our aim is to resolve matters outside of court whenever feasible, using methods like collaborative practice, arbitration, or Resolution Together. But if court becomes necessary, we’re here to guide you through that process too.

With years of experience handling a wide range of family law matters, we’re here to support you every step of the way. Book a confidential appointment online or call us on 02380 713060 today to get started.