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A Mesher Order is a legal arrangement that postpones the sale of the family home following divorce or separation, allowing one party, usually the parent with primary care of the children, to remain in the property for a defined period.
The terms of a Mesher Order may be decided by the court or potentially agreed between the parties. There is often some scope for negotiation and this is where experienced legal advice is very valuable.
Mesher Orders are a common part of divorce finances where there are children and where there are limited funds and especially where :-
it would be detrimental and unfairly prejudice one party/dependent children to immediately sell the property. For example, when there is not enough capital in the matrimonial assets to meet the parties’ housing needs.
where there are young children whose housing needs take priority and the parent caring for the children has limited financial resources and unable to re-house suitably.
Common trigger events resulting in a sale of the property are :-
The youngest child reaching 18 years or ceasing full-time education.
On the re-marriage of the party occupying the property.
If the party occupying the property co-habits for a period of 6 months or more.
On the death of the party occupying the property.
When the property is no longer the occupying party’s primary residence.
If the parties’ financial circumstances change, the parties can also agree to sell the property before any of the triggering events occur.
Mesher Orders can be an appropriate way to deal with the family property with minimal disruption to family life. If the immediate sale of the family home would cause personal or financial hardship, Mesher Orders are particularly attractive.
Mesher orders are financially attractive particularly :-
Where one party does not have the financial ability to take over the mortgage alone and release the other from the mortgage terms, costs can be saved when transferring the property to the receiving party.
The capital value may increase over time whilst both parties maintain their shares in the property.
If the housing market is depressed, a deferred sale may benefit until such a time as the market has recovered whilst continuing to provide a home for the party and dependent children.
Mesher Orders are a pragmatic option however are not suitable in all cases as there are disadvantages. These orders :-
Tie the parties financially as they remain linked in respect of the property. Where there is acrimony, this arrangement could potentially lead to further polarisation of the parties.
With capital being tied up in the family home for so long, the non-occupying party may find it difficult to raise a new mortgage and purchase another property in the interim, with the additional costs such as higher Stamp Duty Land Tax or higher mortgage interest rates for a second property.
A Mesher Order can also bring about Capital Gains Tax consequences which may require expert tax advice.
The non-occupying party may find themselves having to apply to the court for an order for sale to recover their capital.
Mesher Orders are highly flexible and can be tailored to suit the family’s needs. Parties can agree on:
Trigger events - sale of the home can be triggered by the youngest child turning 18, finishing education, the resident parent remarrying or cohabiting, or a fixed future date.
Division of proceeds - the share each party receives on eventual sale can be fixed upfront or vary depending on future contributions (e.g. if one party pays the mortgage alone).
Mortgage responsibility - the order can set out who will pay the mortgage and household bills. Parties may also agree on how any missed payments or arrears will be handled.
Occupation terms - the resident party’s right to remain in the home, and whether they can bring in new partners or tenants, can be addressed clearly in the order.
Buyout option - one party may be given the right to buy out the other’s interest before sale, often with an agreed method for valuation.
Review clauses - provisions can be added to revisit the arrangement if circumstances change significantly, such as job loss, serious illness, or mortgage unaffordability.
Adjustments - contributions (like paying the full mortgage or repairs) made during the deferral can be considered when dividing sale proceeds, if agreed in advance.
Each of these terms should be clearly recorded in the order to avoid future disputes.
A key consideration is that both parties may remain jointly liable for the mortgage, even if only one remains living in the property. This can:
Limit the other party’s ability to borrow or get a new mortgage
Create credit risks if payments are missed
Require ongoing communication and financial cooperation
It's essential to check with the mortgage lender whether they will consent to the arrangement, and whether any changes to the mortgage terms are required.
Since a Mesher Order may last for many years, it’s sensible to include flexibility for unexpected changes. Parties can agree to:
Allow an earlier sale if one party becomes unable to pay the mortgage
Permit review of the order after a fixed period or if certain conditions occur
Adjust how sale proceeds are split if future contributions become unequal
These built-in protections can reduce future litigation and ensure fairness over time.
If one party moves out and the property is not sold for several years, they may face a CGT liability on their share when it is eventually sold, as it may no longer qualify for full private residence relief. Tax advice should be taken before agreeing to a Mesher Order to understand the financial consequences.
While traditional Mesher Orders often last until children reach adulthood, some couples prefer shorter deferral periods, such as:
A 2–5 year delay to allow the resident parent to adjust financially
A fixed sale date to take advantage of a stronger property market
Martin Orders, which defer sale indefinitely but without children involved (usually where one party needs housing security for life)
These alternatives provide flexibility while still addressing individual needs and housing arrangements.
Should you wish to discuss any aspect of divorce, finances on divorce or Mesher Order issues, please do get in contact.
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