What is Mesher and Martin Order?

When it comes to a divorce, the most disputed area is commonly the division of assets. These disputes tend to be difficult for both sides, and therefore, it must be handled diligently. Among the assets, the most disputed question is, who gets the matrimonial home? 

Parties sometimes may prefer not to sell the house because of the current market situation, and they may wish to delay the sale until the market improves, or one of the parties may simply wish to continue living in the same house that they used to with their children, however, they may not have the financial stability to pay the mortgage instalments by themselves.

Mesher Order

The needs of children are paramount, and it is therefore common for the court to attempt to preserve the family home for children. The court is able to make a ‘Mesher Order’, named after the order, granted in Mesher v Mesher and Hall [1980] 1 All ER 126. 

This will allow for a deferred sale of the matrimonial home where there are children of the family. The home is retained in both spouses’ names as tenants in common in defined shares but remains in the possession of the spouse with whom the children reside. This will be in the form of a trust of land whereby the terms of the trust will specify the contributions of each party towards the mortgage payments (if relevant), maintenance, insurance, and general upkeep of the property.

The power of sale will be deferred until there is a specific triggering event. These could be:

• The youngest child of the family has reached the age of 18 or usually at the conclusion of full-time secondary education
• The property has been sold
• The resident party has remarried (or is cohabiting) 
• The death of the resident party
• There has been a further order

The Mesher Order does not prevent, however, an earlier resolution if the resident party finds they are able to satisfy the order before it’s stated conclusion. It would generally be considered unreasonable for the non-resident party to refuse this option.

Importantly, due to a Mesher Order creating a settlement, there may be Inheritance Tax, and Capital Gains Tax implications. If you require further information on Mesher Orders, please contact Ansham White solicitor and we would be able to assist you with this.

Martin Order

The court is able to make a ‘Martin Order’, which named after the order granted in Martin v Martin [1977] EWCA Civ 7, where the parties do not have children. This also creates a settlement order that allows for a deferred sale of the matrimonial home.

In a Martin Order, the resident party will be allowed to live in the family home until a triggering event such as death, remarriage or a new civil partnership, or the party deciding to leave. Following the event, the property is sold and the proceeds are divided between the spouses or their estates. As with the Mesher Order, there is nothing to prevent the resident party satisfying the order’s terms prior to a trigger event.