What is a Mesher Order?

In this article, our family law solicitors answer your questions on what a mesher order is and explain how the order works.

If you are splitting up from your husband or wife and need advice on reaching a divorce financial settlement or need your financial agreement converted into a court order our Northwest family lawyers can help.

For expert advice call our team of specialist divorce lawyers or complete our online enquiry form.

What is a mesher order? 

A mesher order is one way a family judge can deal with a family home when a couple split up. Alternative orders include an order that the family home is sold or transferred into the sole name of the husband or wife.

A mesher order is best described as an order for the deferred sale of the family home but family law solicitors call this type of order a ‘mesher’ as the order was first made in a case involving Mr and Mrs Mesher.

When the property is sold the financial court order will set out how the equity in the property is to be shared between the former husband and wife. One ex-spouse may get a larger percentage than the other so they can rehouse themselves or an ex-spouse may get less than 50% of the equity because they kept their pension or the family savings at the time of the divorce proceedings. 

How does a mesher order work?

A mesher or deferred sale order works by delaying the sale of the family home until a specified date or trigger point occurs. Until the trigger point, one former spouse can live in the house to the exclusion of the other, even though both are still legal owners. 

Normally a mesher order is made by the court when a couple has children and there is not enough equity in the family home for the property to be sold and the equity to be split so both the husband and wife can afford to buy new properties. A mesher may be necessary if one spouse cannot rehouse themselves because they have no or limited mortgage capacity and housing is a priority for them as they are caring for the children.

A mesher order is normally only appropriate where the spouse staying in the family home cannot raise money through a mortgage to rehouse or remortgage to pay off the other spouse’s share of the equity in the family home and the spouse cannot get the mortgage company to agree to transfer the mortgage on the family home from joint names to their sole name.

A mesher order maintains property ownership and financial links between a separated couple. Even if no spousal maintenance is payable, they continue to be financially linked through the joint mortgage. The mesher order can say who is responsible for the mortgage payments but if the payer defaults on the mortgage the credit rating of all those named on the mortgage will be affected.

What are the trigger points for a mesher order?

You can agree on the trigger points with your ex-spouse if you negotiate an agreed financial settlement or the court can decide on the triggers if it makes an order for a deferred sale after a court hearing.

Some of the usual trigger points are:  

• The youngest child finishing their secondary education
• The re-marriage or cohabitation of the spouse living in the property with the children. Cohabitation is normally defined as living with an unmarried partner for a specified period, such as three or six months
• The children no longer living with the spouse who has the right to stay in the family home. For example, if the children are older teens and vote with their feet to live elsewhere or if the court makes a child arrangement order   
• The spouse who occupies the property leaving it. For example, because they decide to move elsewhere 
• The spouse who occupies the property passes away

If you are negotiating a mesher order through solicitor negotiations or family mediation you can ensure that the trigger dates work for your family circumstances.

Is a mesher order a good idea?

A mesher has good and bad points. The good points are:

• The spouse living in the property has a secure home for the children and is not at risk of having to keep moving the children between different rental properties  
• Keeps the mortgage in situations where the mortgage is on favourable terms or neither spouse  would qualify for another mortgage 
• Means the ex-husband and ex-wife remain on the property ladder and they may both have enough to re-house once one of the triggering events occurs 

Some of the negative things about mesher orders are:

• The spouse in occupation may feel unsettled knowing that they will have to sell the property when a trigger point occurs. This may make them reluctant to invest in improving the property knowing that their ex-partner will get a share of the equity
• The former spouses are financially linked to one another by having a joint mortgage. If the spouse in occupation does not pay the mortgage this will affect the credit rating of both spouses
• The spouse not living at the family home may not be able to get another mortgage while their name remains on the joint mortgage on the family home and they will not be able to use their share of the equity in the family home to use as a deposit to rehouse themselves 

Family law solicitors emphasise the importance of taking specialist advice before agreeing to a mesher order so you can fully weigh up the advantages and disadvantages of a deferred sale.

Applying for a mesher order

If you and your former spouse agree that the children should stay in the family home then your family lawyer can draw up an agreed court order for approval by a family court judge. If you can’t reach a financial settlement either of you can apply for a financial court order leaving the judge to decide if a mesher order is the most appropriate solution for your circumstances.

For expert advice call our team of specialist divorce lawyers or complete our online enquiry form.