Marilyn Stowe Blog

Mesher Orders and Martin Orders: What You Need To Know

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.

No related posts.

Posted by Marilyn Stowe on 13 March 2009
Categories: Children and Divorce, Finances and Divorce
Tags: , , , , , , ,

33 Comments

  1. Ian Downing on March 17, 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.

  2. Idola on April 20, 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.

  3. Michael McNaughton on April 29, 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.

  4. Marilyn Stowe on May 1, 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.

  5. Andrew London on September 18, 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

  6. Keefy on October 8, 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!!

  7. Jan Wilkinson on October 27, 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.

  8. Marilyn Stowe on November 1, 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.

  9. Power 4 Home on December 2, 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 :-D

  10. Melly Mel on February 4, 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?

  11. rich s on February 4, 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??

  12. rich s on February 4, 2010 at 1:20 pm

    this is once the youngest child (me) has completed full time education.

  13. JR on March 14, 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

  14. beverley hogan on July 1, 2010 at 12:48 pm

    i have a similar problem myself.i dont know where to go in bradford west yorkshire for help getting out of a mesher order.my son is now 18 and my ex husband is pushing for a sale on the house.there is not enough money left to home my son and i if i sell.my son suffers from a mental illness and has recently been sectioned under the mental heath act.if this is not upsetting enough we are both uncertain of our future,can anybody help me.i have been to see several solicitors who dont seem able to give me a straight answer.please help anybody, i am at my wits end and this is making me feel ill with worry.bev

  15. Rachel on October 2, 2010 at 8:34 pm

    I am now very scared and confused after reading all this! I have a mesher order on my property for myself and my 2 children but have just found out my ex husband who doesnt work and pays no child maintenance is about to declare bankrupsy after running up nearly 25grand in debts. His 40% share in the equity would currently only be at the most 8 grand. Does this mean that the mesher order will not protect me and the children from losing our home if he goes bankrupt?

  16. janet smith on November 2, 2010 at 12:40 am

    Im about to go into court and my ex/husband is asking for a mesher order. At the moment I have custody of his grandson who we adopted, but when our son leaves education will I have to sell the property as I am not in the position to buy another property. This would leave myself and my grandson effectivly homeless as I am retired due to disablity and have no income. My ex/husband is the sole benerfical of his mothers property and as she is in poor health will end up financially well off and myself left on the breadline and I will be dependent on the state to keep me. My ex/husband has a well paid job with a partner in employment and has never paid maintanance for his child as I was unaware of his wereabout until he applied to the court for a financial settlement. I feel like I,m just another sastistic of this matter and dont know were to turn.

  17. Carol on May 9, 2011 at 10:54 am

    Hello Marilyn
    I separated from hy husband last September following 13 years of marriage, due to his domestic violence. At the time I think I was in shock and was just desparate to get him out of the FMH so I agreed to re-mortgage our home and give him £10k to enable him to rent a one bed flat locally, and he would pay the mortgage for a year. The house is worth £250k, the mortgage is £150k, the monthly repayments are £890. The house is in joint names and we have 2 children aged 11 and 14. My husband has unlimited access to them.
    Now he is saying he will not pay the mortgage after the August payment and he wants me to put the house on the market now. This is not a financial decision on his part but an emotional one because he is very bitter about our split and the fact he can no longer control me. He is literally desparate to get me out of the house, and has no thought for the impact this will have on the children. He earns approx £50k and I earn approx £12k as I can only work part time due to a disability. I am not in receipt of Disability Living Allowance but do have a “Blue Badge” so am registered disabled with my local authority. I do not earn enough to take over the mortgage in my own right, as tax credits and child support are not taken into consideration – I believe I will be able to get £550 a month Child Support? However, I would be able to afford to meet the repayments on my own. This would be preferable to me because rent would be around £1300 a month. If we sell, I will end up using all my share of the equity in rent within a few years, so by the time the kids leave home, I will be penniless. Whenever the house is sold I will have insufficient means to purchase a new home so will be renting. I believe he cannot force a sale of the house without divorcing me, and he has no grounds so I am safe for another year. However, what would you advise I do? Would a Mesher Order be a good option for me? Would the amount of equity he was to receive be fixed at the start of the period though, as otherwise I will be paying off the capital and he will be the beneficiary. The bank have refused to switch the mortgage to interest only. Is there any chance he might have to pay maintenance for me as well as for the children? He has a new partner whom he actually lives with and he just keeps his flat on as somewhere to have the kids.
    Any advice or help you can give me would be so appreciated as I have no savings and am losing sleep worrying what will happen to me and the children.

  18. Henry on June 5, 2011 at 10:35 am

    I had a Mesher order made in 1991 where I would receive 25% of the house which was mortgage free when my children finished their tertiary education. My ex was allowed to sell the house and transfer it to another. I went to appeal but failed to overturn that order. My ex sold the house and the next and transferred to a third house, when the time came for my money to be returned I was given just £17,000, the original house by then was worth a million. I was not allowed interest on my capital, although I was charged interest on costs put against me. I could have gone to appeal again but had by then be totally worn down by all the previous court cases and lost all confidence in the judiciary. The courts had become totally hostile towards me and I became totally depressed and was given early retirement on grounds of ill health. I was advised by my Doctor to avoid any further litigation if I wanted to survive. My children were turned against me by my ex and obviously that I was seen as some distant wicked type landlord who had some charge on their home. I haven’t seen them for years.

  19. J Slee on June 7, 2011 at 9:25 pm

    Have been to court twice this year and next one coming up on Thursday, my ex-husband left me and my daughter (his step daughter who is now 19) since September 2007 gone overseas and have not been providing any financial support. He is not disclosing any of his earnings and Judge at the 2nd hearing still concerned about his needs of Section 25 of the Matrimonial Causes Act 1973. However, judge has made an Maintenance Order of which I will never see the money, now I am still waiting for the next hearing of the arrangement of the properties of which the initial order from the 1st judge has made that all matrimonial assets will be transferred to my sole name if my ex is not responding. However, what made the 2nd judge change his mind? Will they use either Martin Order or Mesher Order? I don’t know as at present the properties is negative equity but I can’t afford for a new mortgage if I lost those existing one. I have used Solicitor and Barrister on the 2nd hearing but I don’t see there is any advantage at all, I can’t afford either one of them so I am going in representing myself at the final hearing. Any advice? p.s. I am currently study full time to re-train myself after the divorce as the recession plus stress has been eaten me inside out, I have lost weight from size 10 to size 6 and I barely sleep most of the time. Used to go to see my shrink but she is not available for me anymore, I have to visit my GP regularly but I don’t see the judge have time to see my needs or read the A4 lever arch folder my solicitor and I prepared. Where is the justice?

  20. J Lewis on June 12, 2011 at 10:23 am

    I rread with interest the article – I have myself just gone thru a year long Ancillery Relief process resulting in my having a Martin Order forced upon me, I have terminal cancer and the Judge has allowed me (kindly!) to remain in home till I die with ex having full poccession when I die and charge on property, I paid for the the upkeep of home and the mortgage with the help from my son who put 50k into home, ex has put nothing in to the home and we have lived apart for over 5 years, now when I die my son will be homeless and not even get a penny back of his 50k, I have several animals that will have to be put to sleep also which may sound petty to others but to me my son animals and home are my world, why should someone (ex) who has contributed nothing in ten years plus be allowed to gain on my death when my own flesh and blood gets nothing (my son is from previous marriage not his) – I am trying to appeal Judge has refused this and am awaiting Counsels opinion however the chance of a appeal is slim and even slimmer that I would win I have been advised, my Barrister on the day was totally useless where as his Barrister tore me to pieces no one took into account the medication I was on making some of my answers confused etc, has anyone has a similar experience and is there any advice anyone can give me to secure my son in the property so my ex cannot get him out or at least without a struggle any advice would be welcomed .

    June

  21. Marilyn Stowe on June 13, 2011 at 7:36 pm

    June
    I am very sorry to read about your case. It must be very difficult for you, so if you would like a conversation with me, FOC please call Morna Rose at my office on 01423 532600 and I will see if I can offer you some help.
    Marilyn

  22. To vary or not to vary... on August 19, 2011 at 2:36 pm

    Really sorry to hear of some of the horror stories above. It is dreadful that people in vulnerable situations get treated so horrendously. As for an opposing barrister ‘tearing to pieces’ a terminally ill woman – words fail me. How do these people sleep at night? That sort of behaviour should not be tolerated in a courtroom.

    Can I just ask a qustion on your post here Marilyn? In what circumstances would a husband be liable for Capital Gains Tax on his portion of the FMH under a Mesher Order? Is there a financial threshold that governs this?

  23. Dawn on October 10, 2011 at 8:28 pm

    Hi
    I am trying to reach a solution to our divorce with the finances but am struggling to grasp what is fair and right. I left my husband taking our 2 young kids. He stayed in the matrimonial home as he had a brain op and suffers mentally with change. after a year we still haven’t agreed the financial split. I thought the house was going to be sold but now he wants to withdraw. He can’t get a mortgage as he doesn’t work but I want my name off the mortgage and my equity out the house. I also think there should be some financial contribution towards the children? Recently i have been offered half the equity in the house and my name off the mortgage, when we split the cash pension.savings was heavy towards him he was worth £90k me £55k which is why i think i should get more equity out the house. I want the kids to have some financial benefit from their father who won’t be working for the forseeable future therefore i was looking into a 15% chargeback being agreed so he didn’t need to find any more money to pay me off in the now, but in the future there should be something for the kids. It doesn’t sound like this is a good idea above tho, i’m now confused.

  24. Marilyn Stowe on October 11, 2011 at 6:17 am

    Hi Dawn
    Thanks for the enquiry but there is insufficient information to advise you.
    Please call Paul Read at my office to arrange a telephone conversation FOC.
    01423 532600.

  25. Graham on October 11, 2011 at 2:31 pm

    Must take issue with. Argue for all of the home or equity plus maintenance. Seems too harsh on the man chucked out.

  26. david on January 4, 2012 at 10:26 pm

    Hi, I am in a mesher contract with my ex wife. She has 75% and i 25% of the property, the mesher was taken out 5 years ago. Even as she is paying the mortgage, and say in 10 years time she has still not given me my percent and then sells. Would i still be entitled to 25% od the equity as agreed even though the cash value will be a lot hihger as the loan has gone down ?

    Cheers

  27. Marilyn Stowe on January 5, 2012 at 7:52 am

    David
    The order should state when the property is to be sold and how the proceeds are to be divided up. You should be entitled under the order to apply for a sale on the first trigger event if your ex wife is not cooperating.
    Remember if you have bought another property in the meantime you may be liable for Capital Gains tax.
    I would suggest you take legal advice and have the order fully explained to you, how it is intended to work in practice and when is the earliest time you can expect to be paid.
    I dont know whether the property was ordered to be transferred to your ex wife subject to your charge. You need to check in either case whether the formalities were completed with the Land Registry and the Building Society to protect your interest.
    Best wishes
    Marilyn

  28. turquoise on January 11, 2012 at 1:09 pm

    I don’t know what to do, it’s my husband who owns the house. We have been married for 4 years (in march). I don’t have any assests, he has a decent pension as well. He wants to settle out of court and keep the house, but thats doesn’t seem good enough for me as I am not sure I would be able to get a mortage.

  29. Dave Cee on January 17, 2012 at 4:53 pm

    Hello. My wife has decided she wants a divorce, citing intolerablre cruelty (we have nothing at all in common and she now doesn’t love me). She has told me she will get a Martin order as we have 2 girls aged 5 and 3. Is there a set amount I am supposed to pay to keep my interest in the house. We agreed not to sell the house as the equity would be too small for both of us. I am disbled with MS, which will only get worse. Is a Martin order the best way, as we are still friends, although I have slept on the sofa for the past 3 months? I need to get out, and I’m currently trying to gain financial assistance from my employers. She is working part-time and contributes to the joint account – I pay for everything.

    Many Thanks

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Marilyn Stowe is the senior partner in Stowe Family Law, which has offices in Yorkshire, Cheshire and London. With more than 25 years’ experience handling divorce cases and family law proceedings she is regarded as one of the most formidable and sought after divorce lawyers in the UK.

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Note

I write for the benefit of those who are experiencing family breakdown and for fellow family law professionals. Please note that all persons mentioned in the scenarios are fictitious: details have been deliberately changed in order to protect identities and other confidential circumstances of my clients.

Please also note the advice I give in each scenario must not be relied upon by anyone reading my blog. You must always take your own legal advice as your circumstances may be different and English family law is continually changing.

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Marilyn Stowe is the Senior Partner at Stowe Family Law LLP. Stowe Family Law LLP is authorised and regulated by the Solicitors Regulation Authority. SRA ref 469401. Stowe Family Law LLP is registered with Companies House, ref. 331570, and registered for VAT, number 918 5722 04. A list of members is available for inspection at our Harrogate office.