Background

Can I postpone the sale of the family home when separating?

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Are you going through a complicated divorce? Can’t decide who gets the family home? A Mesher or Martin order might help you reach that agreement

When a couple separates, the value of the family home is often the largest asset that they have to divide, and it can also be the most contentious. This can be for a multitude of reasons, for example, one spouse or partner may feel emotionally tied to the house, or it may be next door to other family members. You both may be concerned about having to move children from the home they have grown up in, perhaps to a different neighbourhood away from their friends and social activities. 

There is also the financial risk, especially with higher interest rates, that it could be difficult to sell the house for a good price to ensure sufficient equity to rehouse each person in a suitable location.  While a clean financial break is normally what separating couples aim for, at times it may be appropriate to consider postponing the sale of the family home. This can be achieved through what is known as a ‘Mesher’ or ‘Martin’ order.

What is a Mesher order?

A Mesher order allows for the postponement of the sale of the family home until either a certain period of time has passed, or an agreed ‘trigger event’ occurs. It is used when there are minor children living in the family home, and it allows one of the spouses or civil partners to continue to reside there with the children. The ownership of the property is not impacted, and the spouse or civil partner remaining in the home does not ‘own’ the home outright. The order will remain in place until the time stipulated in the order, or if the trigger event is reached. 

Trigger events typically include:

  • the youngest child of the family finishing full time education; or
  • the spouse or civil partner, who has remained living in the house, remarrying or cohabiting with a new partner for a set period of time (typically six months).

Once the order comes to an end, the family home will be sold. Then the balance of the proceeds of sale will be divided in line with whatever terms has been ordered or agreed.

What is a Martin order?

A Martin order is similar to a Mesher order in that it postpones the sale of the family home until an agreed trigger event occurs. This order is typically used when there are either no children involved, or any children the couple had are already over the age of 18. 

The trigger events in a Martin order usually stipulate the property can be sold if the spouse or civil partner remaining in the home is to remarry or to cohabit with a new partner for a period of time. On occasion, a Martin order can be made to cover the whole life of the spouse or civil partner remaining in the house. 

These types of orders are usually only implemented when the court is satisfied that the capital from the former family home is not immediately required to enable both spouses or each civil partner to be rehoused. Typically, the spouse moving out of the house will be wealthier than the remaining spouse.

Is postponement the right option?

This decision will depend on your circumstances. In most cases, postponement will only be delaying a problem for you to deal with in the future. Historically these types of orders were used much more often than they are today, however this sometimes led to problems when the house was later sold and some people still could not afford a new house. Delaying matters meant they also had the added problem of having less of a working life left to secure a mortgage. Most separating couples now prefer to cut their ties and know where they stand financially.

On occasion, a postponement may be the right option. For example, if you have very young children, you may not be returning to work until they are at school and postponing a sale could push forward the need to obtain a mortgage until a later date. You could also be tied into a good mortgage deal at the moment, which you would risk losing if the property had to be sold now. If you are able to obtain a Martin order for your lifetime, this could also remove a significant worry about your future housing needs and the costs. 

It is important to note that postponing the sale of the home is not the only option to enable you to stay in the house. Our family lawyers will be able to advise you on the viability of other options, such as offsetting your interest in other assets to retain the family home without your former spouse or partner remaining as an owner.

How do I get a Mesher or Martin order?

If an agreement can be reached, your family lawyer can draft the terms of the order and apply to the court for it to be finalised.  If you cannot reach an agreement, then you can apply to the court for financial relief. The judge, after hearing your case, will make whatever orders they deem most appropriate for the circumstances.

How we can help

If you are concerned over what might happen to your family home following separation, one of our family lawyers will be able to advise you on your options and discuss with you the advantages and disadvantages of seeking to postpone the sale. We can also advise you on alternative options, and if you decide to proceed with a postponement we can ensure that appropriate trigger events are included to protect your interests in the future.

For further information, please contact Hannah Byatt in the family law team on 01480 702207 or email [email protected].

Hannah Byatt BA, Partner


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