We acted on behalf of a Husband who was going through a divorce and was seeking to resolve their financial matters amicably. The parties were within the reflection period following the issue of divorce proceedings and aimed to reach an agreement capable of being formalised into a Consent Order.
Background
The parties had been married for 20 years and had two children, aged 16 and 18 respectively. Whilst the elder child was legally an adult, both parties accepted he would remain financially dependent during his time at university. The younger child lived with the Wife full-time and was also expected to pursue higher education.
The family home represented the principal matrimonial asset. Neither party had the financial means to buy out the other and retain the property alone, and the Wife had a reduced earning capacity having paused her career during the children's early years. Immediate sale of the family home was not considered appropriate given the children's ages and the disruption this would cause.
Our Approach and Advice
We advised the Husband that the court would apply the principles set out in section 25 of the Matrimonial Causes Act 1973 when determining what is a fair outcome, and that the needs of the children would be a primary consideration. We advised that a Mesher Order was likely to be the most appropriate solution in the circumstances, as it would provide stability for the children and the Wife in the short term whilst preserving the Husband's interest in the property for the future.
We advised the Husband on the key terms to be included in the order, including the trigger events whereby his interest in the property would be realised, the division of proceeds on eventual sale and the responsibilities of each party in the interim.
Proposed Solution
On behalf of the Husband, we proposed the following:
The family home would not be sold immediately. Instead, a Mesher Order would be put in place, allowing the Wife and children to remain in the property
The property would be sold upon the youngest child turning 18 or ceasing full time education, whichever was the later, or upon other agreed trigger events such as the Wife's remarriage or cohabitation
On sale, the net proceeds would be divided 55% to the Wife and 45% to the Husband, reflecting the fact that the Wife had a lower mortgage capacity
Each party would be responsible for their own outgoings, with the Wife responsible for the mortgage payments in the interim
A clean break would be achieved on the sale of the property, bringing all financial claims between the parties to an end
Outcome
Whilst the Wife initially had reservations about certain aspects of the proposal, the structure and reasoning behind it ultimately shaped the final agreement. The Consent Order provided that:
The Mesher Order was put in place, allowing the Wife and children to remain in the family home until the youngest child turned 18 or ceased full time education
On sale, the net proceeds were divided 55% to the Wife and 45% to the Husband
The trigger events were clearly recorded in the order, providing certainty for both parties
A full clean break was achieved, bringing all financial claims between the parties to an end
The outcome provided the children with stability during their remaining years of education whilst preserving the Husband's interest in the property and ensuring both parties had clarity about their respective positions going forward.
Key Takeaways
This case illustrates that where the immediate sale of the family home is not appropriate, a Mesher Order can provide a practical and fair solution. It allows the needs of the children and the resident parent to be met in the short term whilst ensuring the non-occupying party retains their interest in the property for the future. The terms of the order need to be carefully considered and clearly recorded to avoid future disputes.
If you would like advice on whether a Mesher Order might be appropriate in your circumstances, please do not hesitate to get in touch.
