Does the family home have to be sold immediately if you get divorced?  - Family Law Partners

Does the family home have to be sold immediately if you get divorced? 

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If you are getting divorced you may want to consider alternative options to the immediate sale of the family home. A couple of options include a Mesher Order or a Martin Order.

Mesher Order

A ‘Standard or classic’ Mesher

A Mesher Order is a type of order where there is a delayed order of sale of the family home. It is named ‘Mesher’ after the case of Mesher v Mesher and Hall [1980]. Specifically, it involves the postponement of the sale of a property that was owned by the spouses, with the intention of allowing one spouse to continue living in the property for a certain period of time or until a triggering event.

Some common trigger events include:

  • The youngest child reaching 18 years of age
  • The youngest child ceasing full-time secondary or tertiary education
  • The remarriage of the person living in the property
  • The death of the person living in the property
  • A further order of the court

A Mesher Order divides the ultimate sale proceeds between former spouses when the property is sold in stated percentage proportions.

A Mesher Order in form of a transfer with charge back

The property will usually be transferred into the sole ownership of the spouse who is remaining in the home. However, the spouse who is not living in the home will still have a legal interest in the property, and will be entitled to receive their share of its value once the property is eventually sold.

Mesher Orders in practice

So how does a Mesher Order work in practice? Mesher orders can be useful in situations where the family has children and one spouse wants to remain in the family home in order to provide stability for the children. By allowing the spouse to remain in the home for a certain period of time, for example until the youngest child finishes full time education, the children can continue to live in the same environment, attend the same schools, and maintain their existing friendships and routines. This can be particularly beneficial for children who are already dealing with the emotional upheaval of their parents’ divorce or separation and for children who are neurodiverse and may have issues adjusting to changes in environment and routine.

Mesher Orders have however fallen out of favour in recent years and are less common, this is due to:

  • They are against the clean break principle in the law as they delay the final distribution of assets. A clean break means ending the financial ties between you and your ex-partner (husband, wife or civil partner) as soon as reasonable after your divorce or dissolution.
  • They can be complex and difficult to enforce, particularly if the spouse who is remaining in the home fails to keep up with mortgage payments or other financial obligations.
  • They may leave one spouse without funds to set up a new home or pay off debts and therefore unable move on in their life.

Ultimately, whether or not a Mesher Order is appropriate will depend on the specific circumstances of each case.

Martin Order

A Martin Order is named after the case of Martin v Martin [1977]. A Martin Order is typically used in situations where the value of an asset, such as a property, business or investment, is difficult to determine. In these cases, the court may order that the asset be held in trust until its value can be properly assessed. Once the value of the asset is known, the court can then determine the appropriate distribution of the asset between the former spouses. Specifically, a Martin Order is used when there is uncertainty or disagreement about the value of certain assets, and is intended to provide a fair and equitable distribution of those assets.

Martin Orders in practice

So how does a Martin Order work in practice? One of the key advantages of a Martin Order is that it allows for a more flexible and creative approach to dividing property and assets. This can be particularly useful in cases where the couple has complex financial arrangements or non-traditional assets, such as intellectual property or investment portfolios. However, Martin Orders are rare in practice, and this is due to them being only useful in very limited circumstances and their potential drawbacks. For example, holding an asset in trust can be costly and time-consuming, and may delay the distribution of assets to the former spouse. Additionally, there may be disputes or disagreements about the value of the asset later down the line, which can further complicate the process.

The spouse who is retaining the property or asset may be required to make ongoing payments for a significant period of time, which can be a financial burden. Additionally, there may be difficulties in enforcing a Martin Order if the partner who is making the payments fails to keep up with their obligations. As with Mesher Orders, Martin Orders are against the clean break principle.

Ultimately, whether or not a Martin Order is appropriate will depend on the specific circumstances of each case.

Our specialist team are experts in understanding and assisting with divorce financial settlements involving property assets. If you need assistance in relation to your divorce financial settlement and the options available to you please contact our expert team to discuss your own unique situation.

Raj Patel is a Solicitor in our Brighton office.


2 responses on “Does the family home have to be sold immediately if you get divorced? 

  1. How out of favour are Mesher orders? If they are indeed seen to be ‘against the clean break rule of law’ then this simply needs citing in court to have order stopped. Is their a legal case when this has been so?

    1. Thank you for your comment, Daniel. We understand you have now spoken to us on the telephone about this question.

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