Wives and mothers usually wish to remain in the marital home – but it isn’t always a good idea to postpone a sale.
A Mesher order is a court order that postpones the sale of the marital home and gives a chargeback to a husband exercisable on the occurrence of specified events. It originated in an eponymous case in 1980, when the Court of Appeal permitted the wife to remain in the marital home with one child until the child was 17 or further order of the court.
When there are no children, the court can still make a similar order for one party to remain in the marital home and thus postpone the sale. This is known as a Martin order, after an eponymous case in 1978, when the Court of Appeal held that the wife could remain living in the property for the rest of her life. The court postponed the husband’s interest from being realised until then, having found that the husband had no immediate need of a capital sum, and the wife would have had insufficient equity to re-house herself had the marital home been sold.
These types of orders were common in the 1980s and 1990s, when there was a need to keep less wealthy mothers and children in their homes, because there would have been insufficient capital to re-house them. They fell out of fashion because they were fraught with difficulties. These difficulties surfaced when the time periods expired and the houses came to be sold.
Typically, the children had reached their majority by this point. When the mother had to sell the home, she discovered that despite inflation, there was still insufficient equity in her share to enable her to buy another property. The Mesher order had been a temporary alleviation of the problem – but nothing more. In fact, in many cases the woman was left worse off, because her reduced amount of time left in the workplace meant that she was unable to raise a mortgage.
I do of course understand that many wives and mothers wish to remain in the marital home. All sorts of arguments – some practical, some child-related and some plainly emotional -are advanced and it is hard not to be sympathetic. However, a lawyer must always think about the client’s overall best interests not only in the short term. That is what we are paid for.
Last week, the BBC reported that a woman who had taken her much litigated divorce settlement to the Court of Appeal had finally settled out of court with her former husband. According to the Daily Telegraph, “Mrs Bokor-Ingram, 38, had applied to vary the terms of her settlement because her 40-year-old ex-husband allegedly failed to tell her he was negotiating a better-paid job when they split.” Mrs Bokor-Ingram argued that had she known the truth, she would never have agreed to the “Mesher” arrangement that the couple had made in relation to their former marital home. The BBC reported that under the terms of the out-of-court settlement, the ownership of the house will now be transferred to her in full.
I think that Mrs Bokor-Ingram has been fortunate, in that the allegations about non-disclosure enabled her to renegotiate her settlement. A Mesher order is one that I would advise a client to avoid if possible. Such a proposal is commonly made during negotiations by the spouse who continues to pay maintenance.
If the other spouse has hopes for an amicable settlement and wishes to remain in the marital home, a Mesher order can appear to be an attractive option. Unfortunately, it can result in far more long-term problems than it solves in the short-term and – and agreeing to one of these orders can lead to a good deal of regret.
If you are faced with this dilemma, consider the following options:
1. Should you negotiate instead for all the equity in the home, so that you can re-house your household immediately?
Or
2. Should you hold out for a transfer of property order, which would you the entire equity in the house?
Only as a last resort would I advise a charge back – and only then if the wife is acutely aware of the long-term impact of such an order. How will she manage when the charge is redeemed?
But there is also a warning to husbands who might be thinking that this is a good way of ensuring a long term windfall:-A further sting in the tail of a Mesher or Martin order is that the husband may have to pay capital gains tax when he finally receives his payout. This applies if he has purchased a principal residence elsewhere, unless the actual amount to be paid to him from the marital home is specified in the order. However, few husbands will agree to an inflation-hit – and therefore diminishing – figure over a long period of time. It would render their “investment” practically worthless.
Related Posts
Here is a list of other related blog posts that you may be interested in:
- Mr and Mrs Bokor-Ingram Revisited
- Divorce the second time around: the pitfalls
- Unmarried parents, children and chequebooks
- “Tabling” the assets to mutual advantage
- The Nanny, The Doctor, His Wife – And Her Lover
- Valuations, More Valuations, The Court of Appeal and Barder…..
- Maintenance, remarriage and “Barder” events
- Divorce, the law of the land – and a twist of fate
- Divorce and snap decisions do not mix
- Divorce: how to minimise costs in a recession
March 17th, 2009 at 10:41 am
In these times of increased bankruptcy risks, another important point to consider is the risk highlighted in Avis v Turner, whereby the Trustee in Bankruptcy stepping into H’s shoes can apply for sale due to the deferred charge, but unlike H can effectively sidestep the protections that the MCA order gave W against an early sale.
And its not just the clients who should worry. Lawyers who fail to advise clients about this aspect of the deferred charge could find themselves in a very tricky position when the client discovers that the Order doesn’t mean what it appeared to mean – Burke v Chapman, etc.
April 20th, 2009 at 11:24 pm
You made some good points there. I did a search on the topic and found most people will agree with your blog.
April 29th, 2009 at 5:35 pm
An interesting point this, and the moral for wives seems to be that it could be very risky indeed to accept a Mesher/Martin order if bankruptcy is a serious risk. Another worry I have is that it could easily be used by an unscupulous husband who had the benefit of a chargeback but who was up to his ears in debt, to declare himself bankrupt as a means of realising his interest early. Perhaps our legislators could consider the point ? Wouldn’t put my shirt on it though.
Marilyn makes some good points but I am still rather uneasy. Of course, each case depends on its own facts ; but the law is saying that the interests of the children must take priority over the needs of the parents. I can see the point in this, but the practical effect is to give a great advantage to the parent with care, and is it right that this advantage should linger on even when the children are no longer dependent ? Can it be just that one former spouse may be over-housed, while the other is in a studio flat ? I can see where Marilyn is coming from, but her suggested solution seems to be swapping one set of problems for another.
May 1st, 2009 at 10:34 am
There is no easy answer to rehousing both parties in a recession. It depends on the resources and reasonable needs of the parties. It is usually the case that neither party can expect to live to a similar standard given the cost of maintaining two homes rather than one.
I have set out options for consideration. None of them are without their pitfalls and my view is that Mesher and Martin orders should be avoided by dependent wives unless they have no reasonable alternative.
May 26th, 2009 at 4:17 pm
[...] Avoid Mesher orders. [...]
May 29th, 2009 at 8:41 am
[...] may remember that I recently looked at the case of a Mr and Mrs Bokor-Ingram. I examined the Mesher order to which the wife had agreed; at the time, she did not know that Mr Bokor-Ingram’s finances [...]
July 16th, 2009 at 11:08 am
[...] judicial discretion to be applied to achieve anything other than fairness, when it is known that divorce can often leave women at a disadvantage. On the strength of these proposals, they would fare worse [...]
August 4th, 2009 at 5:24 pm
[...] cannot reach agreement, a court order may be imposed on both of you after a final hearing. Often a Mesher order is agreed upon when the wife cannot afford to “buy out” the husband’s interest in [...]
September 18th, 2009 at 8:53 pm
I’m am a NRP and a victim of a Mesher Order which was awarded back in 2002 when my youngest was aged 4. PWC has since co-habited, had another child in FMH, amassed three months mortgage arrears, made no effort to get my name removed from the mortgage at FMH and cashed in the endowments which were due to pay off the mortgage.
I have another mortgage now with my new partner but as a second mortgage, I am being financially penalised (by way of a higher interest rate) on a monthly basis.
I categorically believe that some of (if not all) of the above simply must be an infringement of my human rights. Is there a solicitor anywhere who will take on my case or refer me to a solicitor who will.
I am of the opinion that a court should be held accountable for and manage any Order that it passes and if it is not prepared to dismiss an Order that has been brought into disrepute like mine has and pay the additional mortgage monies on my behalf, then it should be rendered null and void.
For the record, I predicted that my ex-wife would do exactly all of the things that she has and this should be recorded in the court minutes somewhere.
Finally, my ex-wife is still insisting (as she did back in 2002) that she will continue to use the Mesher Order as a stick to beat me with until my youngest is 17 (now aged 11). She has also eluded to the fact that her illegitimate son (who has my surname) will be the next tool used to take the Mesher Order into its second decade.
Any ideas anyone?
Regards, Andrew
October 8th, 2009 at 4:00 pm
‘However, a lawyer must always think about the client’s overall best interests not only in the short term. That is what we are paid for.’
What a naive statement. Divorce lawyers are paid to keep the meter running to earn fees for their firms.
When, as is often the case, the reality of the short term fee racking advice materialises in the requirement for another court case to correct the errors below, the lawyers earn fees again.
The divorce law industry has a basic need to perpetuate fee income through prolonging disputes and profiting from people’s misfortune.
Shortly there will be an order implementation hearing to implement an order made in 1993 to provide a mortgage free house to a young girl such that she could reach a happening event (age of adulthood) without her mother squandering the settlement payment made, or of fear of being put on the street through default on mortgage payments, or of second marriage failure. Something the lawyers couldn’t comprehend due to fee earning blindness.
Supposedly the interests of the children are the guiding principles of family law!!
October 27th, 2009 at 8:25 am
I have a question as to children when seeking a Mesher Order. If the children are not that of the the ex spouses, then how can a Mesher Order be applied. No maintenance are being paid to the woman as the children are not his. Also what if the children are all over 18?
Would a Martin order be applied in such a case?
Just a little bit confused because this has some bearing on my current divorce proceedings.
November 1st, 2009 at 9:30 am
Hi Jan
Thank you for your question. I’m sorry but I dont quite understand what you have written. I think you should ask your own solicitor who is familiar with your case,about Mesher and Martin orders and how they specifically apply to your case. However, if you still would like some advice on the point, please give my office a call on 01423 532600 and ask for our Admin Department. They will be pleased to arrange a telephone appointment with a solicitor FOC who will answer your query.
December 2nd, 2009 at 12:17 pm
I like your style, the fact that your site is a little bit different makes it so interesting, I get fed up of seeing same-old-same-old all of the time. I’ve just stumbled this page for you
February 4th, 2010 at 9:49 am
Is it possible to get out of a Mesher Order? I have three children and a complicated consent order involving a Mesher Order. For 6 years now my ex-husband has’nt paid the correct amount of maintenance and has had £10000 in arrears written off yet I am still to let him have 30% of the property I live in with my children, can anything be done?
February 4th, 2010 at 1:19 pm
is it possible to subsequently fight the terms of a mesher order once it has been made.
> presenting a stronger argument that the father should not be able to displace mother from matrimonial home because of abuse and neglect and that 20% of the equity of the house going to him would be inequitable??
February 4th, 2010 at 1:20 pm
this is once the youngest child (me) has completed full time education.
March 14th, 2010 at 7:15 pm
I have a mesher order (still awaiting final draft from court) that I have two issues with. As background, council could not agree on the wording of the order so the DJ called a further hearing for clarification of Judgement.
First Issue. The judgement stated that the Applicant was to ‘…continue to pay the mortgage and any capital element…’ I now have an order excluding capital repayments completely, as the DJ stated at the hearing that his intention in the judgement was for the ‘current’ mortgage at the time of the hearing to continue. At the time of the hearing the mortgage was interest only, although he apparently stated at the second hearing that he did not know what basis the mortgage was at the time of the original hearing.
So using the DJ’s logic, if I had been paying the mortgage including capital at the time of the first hearing, then my ex would have had to continue paying this. Surely the basis for the DJ’s argument is in error. In court, my ex’s financial needs were reviewed in detail, including a claim for spousal maintenance, and an detailed comparative budget was presented and cross-examined. How could a DJ then make a decision regarding capital repayment with such uncertainty over the basis of the mortgage? The result of this means that a £110,000 mortgage will not be repaid however capital was specifically referred to in the judgement.
Second Issue. I see previous references in the this blog to the fact that if the family residence is sold then this is one of the triggers for settling the charge, – as the reason for it being retained is for the children.
My draft order has a clause stating that the Applicant can sell and reinvest the gross proceeds of the sale in another property. There is no reference to this matter in the judgement whatsoever, so how can the DJ in making the order insert this clause. Surely this also goes against normal Mesher Order principles. In theory my ex could under this order sell the house and move presumably anywhere in the world, to Spain for example and I would have no security over my charge.
I have already spent £,000’s on lawyers however my solicitor did not advise me of the second ‘clarification’ hearing, or send me a copy of the draft order before it went to court, so I don’t know exactly what was said by the DJ prior to him making the final order.
Any assistance or suggestions would be appreciated, do you think I have grounds for an appeal? Should I spend more money getting what I believe is fair for us both.
JR