Mesher Orders – How is a house divided in a divorce?

In this post, we’ll take a closer look at the Mesher Order and explain when this type of order could be used as part of the divorce process.

A mesher order is a type of court order that can be issued as part of the divorce process. In this post, we’ll take a closer look at the Mesher Order, delve into your divorce house rights and address the key question: how is a house divided in a divorce?

What is a Mesher Order? 

A Mesher Order is an order which states how the family home should be dealt with upon divorce.

When a couple divorces, coming to an agreement about how assets should be split can take time. The courts can make a variety of different orders with regards to the financial settlement upon divorce. 

When most people think of the practicalities surrounding the family home and divorce, they usually think about the family home being sold and the money divided between the couple or, alternatively, one spouse buying the other out. 

A Mesher Order offers a different alternative to the courts, as it is used to defer the sale of the family home until either a certain amount of time has passed or until what is known as a ‘trigger event’ takes place.

In order to get the full picture of your divorce house rights, it is important to understand the mesher order.

Why is it called a Mesher Order?

The Mesher Order gets its name from a divorce case in the early 1970s. 

What does a Mesher Order mean in divorce practice? 

If a Mesher Order is used, the family home usually remains in the joint names of the two spouses until this trigger event occurs (and the home is sold). 

Alternatively, the family home could be transferred to the spouse living in it, with the other spouse having a charge over the property.

When the trigger event happens, the property can then be sold and the money divided. 

Trigger events can include children finishing school or the spouse who will be living in the family home, remarrying.

Why a Mesher Order? 

If one spouse would like to remain in the family home with the children but does not have the ability to ‘buy out’ the other spouse, they may seek a Mesher agreement. 

One of the main advantages of a Mesher Order is that it can help to keep disruption to a minimum, especially for the children. 

Mesher Orders can also be useful if, for example, the property is currently in negative equity.

The family home is often one of the most contested issues in the financial settlement. It’s usually one of the most valuable assets that many couples have (both emotionally and money-wise), meaning that how to deal with it upon divorce can result in some very heated exchanges.

The Mesher Order offers an alternative to selling the family home and dividing the profits, or one spouse buying out the other.

The Mesher Order can be used to defer the sale of the family home either:

• until a specific period of time has passed or
• a ‘trigger event’ (children finishing school, for example) takes place.

Mesher Orders are normally used when one spouse wants to stay in the family home with the children but does not have the funds to ‘buy out’ the other spouse or take over the mortgage on their own.

Is a Mesher Order always the best option? 

Mesher Orders are not right for every divorcing couple. 

Over the past few years, the idea of a ‘clean break’ from a spouse upon divorce, has gained in popularity. A Mesher Order does not really allow for a clean break, as the two parties will normally still have to be involved in, for example, the maintenance of the family home.

There are also other issues associated with a Mesher Order. For example, the person not living in the home may find that, if they buy another home, they could have capital gains tax to pay when the family home is eventually sold. 

Mesher orders can be useful in some, but by no means all, circumstances. It’s highly advisable to seek advice from an experienced divorce solicitor about your personal situation. 

How does a Mesher Order work?

The family home will normally remain in the joint names of both spouses when a Mesher Order is issued, up until the point that the trigger event takes place and the property is sold.

Sometimes, the family home is transferred over to one spouse (the person living in the house). The other spouse will have a charge over the property in this instance.

The property can be sold when the trigger event occurs. The money will then be divided.

As well as children finishing school, possible trigger events may include the spouse living in the property remarrying, or the youngest child reaching a specific age (normally 18).

When is a Mesher Order appropriate?

A Mesher Order is not a ‘one-size-fits-all’ solution.

An order of this nature does not allow for a ‘clean break’ divorce, as both parties usually have to be involved in family-home-related issues.

What’s more, if the non-resident party purchases another property, they could become liable for capital gains tax once the family home is sold.

As always, it’s highly recommended that you speak to a solicitor about the pros and cons of a Mesher Order in relation to your situation, before deciding whether or not this would be the best option for you.

What happens to the house in a divorce?

When most people think of their divorce house rights, they usually think about the family home being sold and the money being divided between each party or, alternatively, one spouse buying the other out.

But how is a house divided in a divorce? In some instances, the family home is sold and divided, as described above. Sometimes, one spouse buys the other spouse’s share of the house. However, this is not the full extent of your divorce house rights.

A Mesher Order offers a different alternative to the courts, as it can be used to defer the sale of the family home until either a certain amount of time has passed, or until a ‘trigger event’ takes place. A Mesher order is, therefore, a key issue when discussing divorce house rights and answering the question ‘how is a house divided in a divorce’.

Divorce house rights: what does this mean in practice?

If a Mesher Order is used, the family home usually remains in the joint names of the two spouses until this trigger event occurs (and the home is sold).

Alternatively, the family home could be transferred to the spouse living in it, with the other spouse having a charge over the property.

When the trigger event happens, the property can then be sold and the money divided.

Trigger events can include children finishing school or the spouse who will be living in the family home, remarrying.

Alternatives to a Mesher Order

Although it is an important element of divorce house rights, a Mesher order is not suitable for every divorce. Sometimes, it will be better to sell the house and divide the equity or for one party to buy the other party’s share of the property.

Over the past few years, the idea of a ‘clean break’ from a spouse upon divorce has gained in popularity. A Mesher Order does not really allow for a clean break, as the two parties will normally still have to be involved in, for example, the maintenance of the family home.

There are also other issues associated with a mesher order. For example, the person not living in the home may find that, if they buy another house, they could have capital gains tax to pay when the family home is eventually sold. This is why it is critical to seek advice from an experienced solicitor about your divorce house rights, before making a decision on whether or not a Mesher Order is right for you.

How much does a Mesher Order cost?

If you and your spouse are unable to reach an agreement about your financial settlement, you may have to ask the courts to decide for you. Court proceedings can be both time consuming and costly, with a Mesher Order just one of many possible court orders that could be issued.

It’s highly advisable that you seek legal advice about your divorce house rights, so you can establish what is best for your individual circumstances.

How common are Mesher Orders?

Mesher orders are not as common as they were in the 1980s and 1990s. One of the most common problems was that when the house was finally sold, many people were not left with enough equity to buy another home. Plus, they had more difficulties getting a mortgage than they may have done at an earlier stage because they were now older. 

Some feel that the Mesher Order can sometimes serve only to delay the problem for the person staying in the family home, not solve it.

A Mesher Order is only one possible answer to the question ‘how is a house divided in a divorce’. It’s always best to book an appointment with a solicitor to discuss your divorce house rights and how a Mesher Order could benefit you.

How can our expert divorce solicitors help you?

As legal experts, we specialise in following areas:

• Divorce and separation
• Child law and custody
• Finances on separation
• Family law
• Civil partnerships
• International divorce

Our expert divrce solicitors can help you with a range of legal issues, including:

• Prenuptial agreements
• Cohabitation agreements
• Post civil partnership agreements
• Divorce
• Domestic violence and harassment
• Child maintenance
• Child contact arrangements
• Divorce financial provisions

Contact our expert divorce solicitors for advice

For more information call our divorce solicitors on 0845 862 5001 or email mail@austinkemp.co.uk.

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