Mesher and Martin orders

Mesher order

A Mesher order provides for the deferred sale of a property, which will then be triggered by a specified event – typically the youngest child reaching 18 or leaving full-time education, whichever is later. Up until this point, the property will remain in the parties’ joint names but one of the parties and the children will remain living there until the sale. Once sold, the parties will receive specified portions of the net proceeds.  

Mesher orders are named after the eponymous case Mesher v Mesher [1980] 1 All ER 126. In this case, the parties’ matrimonial home was jointly owned by them. The wife wished to remain in the property with their child, but the problem facing the court was the perceived unfairness of both options before it - transferring it to the wife or ordering its sale. To transfer the home to the wife would leave the husband without his fair share, but ordering its sale would provide the wife with a large sum but not a home (the husband had already bought a new property). Instead, the court ordered the property to be held on trust for the parties, and then sold once their child reached the age of seventeen. The parties would split the mortgage repayments equally and then upon the sale of the property, the net proceeds would be divided equally.  

The benefit of a Mesher order is that it can help provide stability for children in what is often a turbulent or unsettling time. However, Mesher orders have generally fallen out of favour with the courts. In general, the courts have shifted their approach to focus on helping parties regain their financial independence. A Mesher order also contravenes the court’s general approach of ordering a ‘clean break’ between the parties where possible.

Martin order

Like a Mesher order, a Martin order also provides the deferment of the sale of a property. However, this order will be made instead of a Mesher order where there are no children involved. As such, the prescribed events which will trigger the sale of the property are different. Common triggers include the occupying party’s remarriage or extended cohabitation with a new partner.  

In Martin v Martin [1978] Fam 12, the court held that the wife could remain in the matrimonial home for the rest of her life. This was determined on the basis that the husband had no immediate need for a capital sum, and the wife lacked sufficient ability to rehouse herself without the matrimonial home. 

If you are considering or going through a divorce and are concerned about your family home being sold, contact Vardags today for a free initial consultation with one of our expert divorce solicitors. 

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