Please don’t sell the home...

...what about the kids?

During a divorce the family home could be sold for financial reasons, this may however not be best for the children

During divorce proceedings it is possible that the family home may need to be sold for both parties to financially go their separate ways. Financially this can be the best and most sensible solution however there are often times when children are involved and it may be best for those children if they remain in the house they call home.

In this case a Mesher order can be used so that the best outcome for the children is in place.

What is a Mesher order?

A Mesher order (often known as a transfer and a charge back) is a court order that postpones the sale of the former matrimonial home and provides a chargeback (a legal charge securing in the interest of the home) to the husband or the wife or both once the property is sold. The property remains occupied by one spouse and the couple’s children and remains in both names. The order is in place until a specified event occurs at which point the property is sold.  

The specified events which might trigger the sale include:

  • A remarriage;
  • One half of the former couple move in with a third party (i.e. cohabitation) for a period: or
  • The children are completing their education or reaching a certain age.

With a Mesher order it means that, although the sale may be required to fund a divorce or new accommodation for both parties, there is a ‘reprieve’ for the person currently living in the marital home to find an alternative place to live. More often than not the other party has often already moved out and will already have somewhere to call home.

Please note consideration has to be given as to whether this type of order is suitable for you and is often linked to the amount of mortgage owed and who will be paying it.

What happens when there are no triggers related to children and you cannot afford a new home?

In this situation there is an order known as a Martin Order. This can be applied when a separating couple have no children or where a family court may conclude that the wealthier spouse does not need immediate access to the capital locked up in the couple’s former home. In this instance it is possible that the less wealthy spouse would be unable to rehouse themselves if the former marital home was sold and their interest in the property was realised. A Martin Order is only triggered if the circumstances of the couple, means that the house absolutely needs to be sold to pay for any expenses.

This type of order became very popular from the 1980s up to the 1990s. However, more recently many family solicitors see the above orders as quite outdated and there is scope to argue that they should only be used as a last resort.

If you require more information or confidential advice about your own personal circumstances and would like to come in and talk to one of our expert family law solicitors please contact our family team on 01733 882800 or email Giuseppe Pingerna directly.

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This article has been prepared for general interest and information purposes only; it does not constitute legal advice and should not be relied on as such. While all possible care has been taken in the preparation of this article, no responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by the firm or the authors.