Mesher orders: a deferred mortgage?

Monopoly housesOver the last few days there has been a sharp exchange of opinion on the blog between readers, about the impact of Mesher orders. The Mesher order has been a popular option at times but it is not without its disadvantages and in this post, I would like to take a closer look at the implications of Mesher orders for former spouses.  

Divorce and loss always run hand in hand. When a husband and wife finally decide enough is enough, that decision can be financially painful for both.

I don’t know anyone who walks away from a divorce without wincing.

A wife whose husband has left her, will have to come to terms not only with the loss of her husband, and the devastation caused to the children, but will also have to face the unpleasant and often unarguable fact that hers and the children’s home will most likely have to go. She is adamant that will not happen not least because the children will have to be uprooted and it isn’t fair to them. They love their home, their garden, their bedrooms. But a financial settlement on divorce isn’t about emotion.

Where there is plenty of equity in the marital property, the needs of both parties can be met and they can move on with their lives. Big problems occur when there isn’t enough equity to go round. What happens then? The easy option is to go for a ‘Mesher’ type order, to avoid an immediate sale.

Such an order is made when one party wants to stay in the home, but it wouldn’t be fair and reasonable for the other to lose all their interest in the equity. So, the party who wants to stay may do so, and in the meantime, the payment of outgoings in relation to the property is footed by the parties on terms agreed or ordered. Then on a given date, the property is sold and the proceeds divided between them, as may be agreed or ordered by the court.

A typical case might involve a couple with children, where the immediate sale of a house would produce no obvious benefit to either party because the house is not worth enough to finance new homes for both.

The person who stays in the house, usually the wife with the children, might not be able to manage without an income contribution from her husband. So in return for continuing maintenance, she agrees not to sell and to stay in the house until, say, the youngest child reaches 17, or leaves school or university.

A sale could be triggered earlier: for example, if the wife remarries or “permanently cohabits”., There are frequent arguments as to what “permanent cohabitation” does mean, because there is no legal definition. However, that’s another post!

For the purposes of this discussion, let’s assume that the husband is to receive say 25 per cent of the equity on the sale of the house and the wife the balance. The house is to be sold when the youngest child is 17. The wife thinks she can breathe easily for at least seven years. She gets on with her child rearing and keeps on with her part time job, blissfully ignorant of what is waiting her round the corner.

The cost of living is rising but for most of us, the value of our properties has not rocketed spectacularly, so even if the youngest child is only ten, and the house must be sold in seven years, we can safely assume, that in real terms, the parties will be no better off.

The husband will receive his share of the equity and if he has a new ‘principal residence’, he may find himself paying capital gains tax on his share unless a fixed sum has been agreed at the time of the order. However, with the relief available for capital gains tax he may still be okay.

But what of the wife? With her share, 75 per cent of the equity, she will still be unable to afford anywhere else to live. Her 75 per cent may be enough to ‘put by’, but will not enough to re-house her without a substantial mortgage that she cannot afford.

So eight years on, while the wife has borne the brunt of the child rearing and seen her own income remain much the same, the husband has seen his share of the property increase in value, providing him potentially with a tax free return on his investment. The wife, meanwhile, is left homeless.

That is the situation facing Claire, who described her troubles on the blog. Family lawyer Andrew, meanwhile, has been telling her in no uncertain terms to get real, and face the music.

So is a Mesher order ever a good idea? I’ve never been a fan and would view it always as a last resort. It might seem like a good idea to someone who at the time wants to stay in her home without uprooting herself and the children. But if she isn’t going to increase her own income, so she has a realistic prospect of paying off her husband on the due date, then all she is effectively doing is taking on a second, big, mortgage with a deferred repayment date. And like everything deferred, that date will, eventually come.

I would therefore always advise a client to tread warily if offered a Mesher order. Instead, go for all the capital in the house even if that means substantially downsizing, since the investment will still be yours and only you will benefit from that growth. But if a Mesher order is your only realistic choice, make sure your maintenance claims against your husband are not extinguished during the period of deferred sale and, most importantly, afterwards, when you are likely to struggle.

It is important to remember when negotiating a financial settlement to think not only of the here and now. Always have an eye to your future. How are you going to manage? How are you going to improve your standard of living? How are you going to save for that rainy day when payback is demanded?

Financial orders on divorce are intended to be certain, permanent and for life. And if not fully thought through, they can have very destructive long-term consequences.

As I advise all readers of this blog, your own circumstances are completely unique to you and your partner and the law is designed to fit all shapes and sizes. Therefore you should always, always (!) take legal advice before settling.

Experienced family lawyers know what is coming for you down the line. Claire writes that she couldn’t afford legal help at the hearing, while her former husband was represented by a solicitor and a barrister.

With such inequality of arms it’s no wonder, perhaps, that Claire is now writing in desperation to the blog.

Photo by woodleywonderworks via Flickr under a Creative Commons licence

Marilyn Stowe

The senior partner at Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA.

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52 comments

Andrew - October 8, 2013 at 8:20pm

All very fair, Marilyn. My point was that where a Mesher has been made – however ill-advised or un-advised the wife was – it must be followed through when the time comes. The husband has a legitimate right to expect that it will be.

I noticed an increase in Meshering when pension-sharing was introduced, and well there might be; District Judges were not eager to deprive a man of half his pension and all his capital!

JamesB - October 8, 2013 at 10:36pm

No sympathy with this whatsoever. It reaks of entitlement. I wish someone would buy a house for me and I got to see my kids more and get paid for it which is what you call a womans right. That really upsets me.

JamesB - October 9, 2013 at 8:45am

Basically you are saying, where there is not enough money to go around, and there are children involved and the woman is the primary one to look after them then, upon divorce, she should get everything, and the man be left with nothing. That has to be wrong.

Is a massive illustration of the problem of family law in this country, it is written for the women by the women and old posh geezers and is not fair.

Stitchedup - October 9, 2013 at 10:43am

Jesus, what a ones sided article – the husband has left the wife? the wife is not working? the husband is working? the husband can afford to allow the wife to continue to live in the house and he can pay maintenance? the husband has somehow managed to buy another “principle” residence and will therefor have to pay capital gains tax on the sale of the previous family home?

I was not given anything near the protection that Claire expects. My ex left me in the house with the children then secured an order of sale. House was sold way below market price in what was already a very depressed market, and I was unable to secure a mortgage being on a 1 year fixed term contract earning a fraction of what I would normally earn. My ex earns the most she’s ever earned in her life, a secure job on a permanent contract working for the council with a gold plated pension. End result – my ex is living in a nice new show home, both the kids are living away in University, and I’m living with my 74 year old mother in a two bed flat! I also had to pick up at least 90% of the costs because I dared oppose the sale of the house.

Yep, it’s a man’s world alright!

Marilyn Stowe - October 9, 2013 at 10:48am

Dear Stitchedup
I have no idea what happened in your case but I am dealing with a woman who has written to the blog who was certainly stitched up in hers. There’s no question about it. She was unrepresented, the husband was, the protective clauses a solicitor would insist upon including into the deal weren’t there, because she didn’t know they had to go in.
So you may have been stitchedup – I cant say – but I can say in Claire’s case she certainly was.
Regards
Marilyn

Stitchedup - October 9, 2013 at 12:19pm

I take your point Marilyn and apologies if I’ve caused offense.

My point is however, that nobody seems to bat an eyelid when this sort of thing happens to a man, it seems par for the course.

Pisk99 - October 9, 2013 at 4:57pm

Marilyn’s article was only looking at one case although I have to say it does leave out the fact that the woman now has time to work towards re-training/working, what ever she did before the husband and the child came along when she had to be self-sufficient. As surely it is not the mans role in this day and age to support that wife ongoing? He has to support her through a period of transition in some situations but after that – it should be a level playing field again – but I do understand it depends on the circumstances.

Having watched my now fiance go through the tail end of his divorce, I am saddened to see a women (that has been kept for the best part of their marriage) take such a kind a generous man for every penny he has in the sale of the house, splitting his savings, spousel and child maintenance and all she has done is fight for more and more regardless of the extra hours and income she has, leaving him to not be able to contribute to any new life of his own – while his ex wife is already moved in with someone else and supporting 3 other children in addition to their own.
Very very sad and when we put together a case to try and adjust the financial conscent order later this year – will he be supported by the law? I hope so but I really doubt it :-(

I think much of the law seems to be based on a time when men were the sole bread winners and had the responsibility to look after a women and marriage was for life. Women are able to stand on their own two feet now and earn a wage and fend for themselves – so this shld surely be built in to any settlement agreement?
But regardless – should men be penialised when their relationship no longer works, they married the wrong person, they are being made ill be the relationship or they ahve simple fallen out of love….?

Adele - October 10, 2013 at 12:01am

I have been forced out of my home of 28 years due to my husband committing adulty.. he moved out and i was living in the property as I have paid the mortage for years and I put the house on the Market due to finding out he had quite a few CCJ on it and although they would have been cleared and he could of walked away debt free and I would have walked away with nothing he refused to sell even though we were offered full asking price, he then moved back in expecting me to pay the mortage while he was still committing adultry in which forced me out and rent.. I was advised to cancel mortage payment in which I did and now he wants to stay in the property although he cannot cover the cost and expects me to contribute while he is living there with his new women and has also changed the locks.. it took us 28 years to build that family home and took her one day to take it away.. I have no option but to force the sale as the arears are building up and I dont see why I should pay for them to live there when I am having to pay rent at another property.. where is the justice in this?? any advise would be appreciated

Marilyn Stowe - October 10, 2013 at 10:14am

Dear Adele
I don’t know where you are in the divorce proceedings. Have you every issued any? Have you issued an application in the divorce for a financial settlement? Looking at your case in retrospect, I would not have advised you to move out, I would have applied to keep him out of the property and I would have applied in the divorce for an order for sale and the net proceeds to be paid to you along with perhaps an application for interim maintenance in the meantime to help you pay for it all. It would have happened quite fast.
Where you are now is very different. So, is it practicable for you to move back home and him and her out – I don’t know, but I agree obtaining an order for sale and applying for the balance in a financial application to the court on divorce looks like your option. If he is working there is no reason why he cant contribute to the outgoings in the meantime, so perhaps an application for maintenance is an option, and I would also suggest speaking to the building society to see what is needed to avoid possession proceedings.
I don’t have a full picture, you do have options but I think you must go and see a solicitor and you can then act on the advice you receive.
Regards
Marilyn

Doblo - October 10, 2013 at 12:35am

Dear Marilyn
I’ve just been reading all the comments on this subject, I have just recently got residency for my 2 children, I say children my eldest is now 18 and going on to university youngest 14.
Although I left the children with the mother back in 2011, in the marital home, I hoped that they will not have to face being up rooted or rehoused, last year the social services put them in my care, I had to rehouse them, due to my ex wife invited a male friend to live with her, shortly after he started to threaten the children.
Any way to cut a long story short, I applied for a occupation order back in June which I got, and have moved back in to the marital home with the children, the Judge ordered her to move out in August with her boy friend.
I now have my 2nd finance FDR coming up, Marilyn you mention that you should ask for 100% of the equity in the house, how would a Judge look at that with me when I have the children still in full time education, my ex is claiming spousal maintenance from me, I do not get any child maintenance, she does not work and claims she is ill and unable to work. I only earn a average wage of around 30k PA, after paying all my monthly commitments, the shopping plus the children’s expense’s I hardly would have any monies left for my self to enjoy. Up to now I have been fighting my own case with a McKenzie friend, affording a solicitor is not financially viable for me, if I can get any sort free legal advice, It would be appreciated.
Would a Mesher order work in my favour? can I get 100% equity? how would a Judge look at it, would I have to give her a percentage? can I offer her what ever I can afford to raise? she wants 50%.

JamesB - October 10, 2013 at 9:53am

I really would like Marilyn to answer your post Doblo, please. If she does, it will restore my faith to a degree in the legal profession.

I do not think she will though. I think, sadly, that the law is not gender neutral and you will have to offer at least a 30% of the value of the equity in the house as a mesher order as you are a man and she is a woman. If it were the other way I think she would say 100%. A really good post though, best I have seen on here for a while. Good luck.

Andrew - October 10, 2013 at 11:45am

Thinking further about this. In the World After LASPO there are going to be more and more cases where one party is and the other is not represented. If that is to be a reason for changing orders three years down the road – or not carrying out the sale under a Mesher when the time comes – then goodbye consent orders and settlements. When ancillary relief cases are settled, as you know better than I, neither party is usually entirely content; they compromise to end the litigation. If they are not sure of ending the litigation why would they compromise?

Doblo - October 10, 2013 at 1:05pm

I shall wait patiently,thanks JamesB.

Marilyn Stowe - October 10, 2013 at 1:50pm

Dear Doblo
In making a decision the court will decide the reasonable needs of both parties and how those needs will be met, out of the assets of both parties, namely their income and capital. The court will consider all the relevant factors of Section 25 Matrimonial Causes Act 1973 in making its award.
I have no idea what income and capital both of you have in total including any pension provision. I don’t have sufficient information about the relevant Section 25 factors. I don’t have any idea of your respective needs.
You can download my book on the side bar, Divorce and Splitting Up, it will cost you 99p for the e version and the proceeds are going to The Children’s Society. There is a great deal of information to guide you in it. It should assist you to formulate an overall proposal. Get back to me if you need any further help.
Finally I run a substantial law firm as well as answering questions pro bono on the blog. I don’t deserve smart comments.
Regards
Marilyn

JamesB - October 10, 2013 at 2:16pm

Well, I don’t think you should expect to post one-sided provocative threads and comments and not expect people to get emotional. Especially on this subject which has cost me tens, probably hundreds of thousands of pounds. Regards, James.

Marilyn Stowe - October 10, 2013 at 2:17pm

Dear James
My point is that I don’t just answer the blog;- I have a day job, so I cant always jump to it straight away. Of course I expect comments, but I also expect the courtesy of time to reply myself.
Regards
Marilyn

JamesB - October 10, 2013 at 2:18pm

I note that as a lawyer and a politician you did not answer the question, even with a caveat. I do think you could have given a rough answer with a caveat given the information provided.

PeteAlison - October 10, 2013 at 3:03pm

Also, bear in mind that if the husband is declared bankrupt, the wife will not have the benefit of the 7 years in your example as the trustee in bankruptcy is not bound by the terms of the Mesher, so she will get 12 months from the bankruptcy order.

Luke - October 10, 2013 at 10:17pm

I’m looking at this and I don’t see how he has done better than her.

She got custody, which I understand is probably reasonable – but that decision inevitably partially screws up his life.

One assumes he has been paying child support and spousal support and will have had to rehouse himself somehow – and then at the end only gets 25% of the value of the house that he originally lived in. Of course the main problem is that there was never enough money to go around but if he’s doing ‘better’ out of it I don’t want to see a case where a man is doing ‘worse’…

HLB - October 10, 2013 at 10:49pm

My estranged husband left me in 2004 when my sons were both under two. I have a question re: equity splits. I couldn’t afford to continue obtaining legal advice, at the time, so we settled on a 65/35 split of the equity which meant that the marital home was 100% mine in the end; my ex took 2 other properties which now, with his main home, have equity in them. The problem is that he resents the initial split and has is angry that ‘one day’ he will have to pay CGT. I am worn down by his antipathy; while I am fortunate to have a house paid for out-right and receive 20% of his income as child support (though possibly less than 20% at present as I know he earns more at the moment) moment), I have been raising the boys pretty much singlehandedly and have devoted myself to this. I have remained single and lived alone in all that time as my priority is the children. 9 years on I am finding it hard to get work again (i’m a teacher). My ex says that because I received a 65% split of assets, I am not entitled to spousal maintenance and no more than a fifth of his salary for child support (despite him earning 1K per day). I know how lucky I am compared to most single parents but I wonder how the system works re: high earners; what the standard practices are re: asset splits; spousal and child maintenance and if it is true that because I had the lion’s share of the assets I therefore forego any spousal maintenance ( I do not wish to claim against his pension etc); and also how long these should continue for? If you can help I would so appreciate it as I am loath and not able at present to instruct a solicitor again if my ex is correct. A friend is going through a divorce currently after her husband had an affair; she tells me that spousal maintenance is paid along with child support; and that a larger % of equity eg 70% goes to the parent who is raising the children and that it continues for longer than I believed. Suffice to say I am confused as to what I would be eligible for. Many thanks and I think it is an excellent blog; just googled for divorce finances etc and it came up!

Marilyn Stowe - October 11, 2013 at 1:15pm

Dear HLB
There is no easy answer to your question, no equation, no formula. Every single case is different and the answer to each case depends entirely on the circumstances of the case, the income and capital from all sources of both parties and their reasonable needs. If there is a surplus of capital after both parties needs have been met then there is a starting point of dividing the rest on a 50/50 basis but that is not always the case.
Do download my book where you will find much more information as a guide. It will cost you 99p as an e book and the proceeds are going to The Children’s Society.
You will see the factors the courts take into account in determining a settlement and you should be able to work out from it what you need, what split there should be and how much maintenance should be paid to you and the children. The starting point is reasonable needs. You can then go to the downloads on the blog where there are worked examples to help you further.
Regards
Marilyn

Luke - October 11, 2013 at 2:03am

HLB, your friend is not really exaggerating, she should be able to financially smash her husband in divorce court if she has a good lawyer – it will be heavily loaded against him.

As for your position – hopefully Marilyn will tell you what can be done now – if anything – at this late stage.

HLB - October 11, 2013 at 10:01am

Thank you, Luke. I have just had email from ex saying he will tell boys that I am getting legal advice and that they will have to leave school as he can’t pay for them ( he wanted private senior school but I pay half the fees). I find it hard to understand that someone on 10-12k NET PCM cannot live on what is left after he pays us 2k PCM . I know how lucky I am financially compared to most people out there but of course with the boys being at the school they’re at, there are financial pressures and almost all the rest goes on food and bills. He has also threatened that if I go ahead in seeking a different settlement /spousal maintenance as well it will be bitter and acrimonious and he will involve the boys. I have never once said anything negative to them about him as they adore him and he is great with him. Just not with me sometimes unless I go along with all he says and am very grateful. For what it is worth, looking at the above posts, I feel for those fathers doing he very best for their children and yet feel the court system is biased against them. That is hard.

Stitchedup - October 11, 2013 at 11:11am

HLB, did I read your post correctly, your husband earns 1K a day? That’s approx. 20K a month which means you should be receiving approximately £4k a month and you own a house outright?

£4k/month sounds pretty reasonable to me given if you don’t have a mortgage to pay.

Staying home to look after the children is a lifestyle choice these days, and its a choice that many women with husbands/partners that earn more modest salaries don’t have; I think you know that.

The relationship is over is it not? The children have their family home and it appears ample child maintenance, why don’t you “move on” and find a new partner?. You don’t have to carry the cross for your estranged husband. I’m sure the father, if like me, will be there for the children if needed and they will eventually inherit a share of his assets.

I’m certainly no lawyer but I’m of the opinion that there’s a limit to how much a woman or man needs to live a reasonably comfortable life. I don’t see why a man, or a woman for that matter, she be forced to pay huge amounts of spousal maintenance just because they have a good salary; imho a fixed percentage up to a maximum ceiling would be more appropriate.

HLB - October 11, 2013 at 11:51am

Ps don’t want to smash anyone financially I hasten to add!

JamesB - October 11, 2013 at 1:36pm

I just had my lunch and then made the mistake of catching up on this thread, it has given me indigestion.

HLB - October 11, 2013 at 1:46pm

Yes I agree but as I said I receive 2k PCM as it is in net income but of course that is still less than the 20% purely for child support. 2k PCM is a lot I know. Plus I get constant tirades about showing gratitude, trust me, I do but my ex involves the boys. I have never said anything negative to them about him, only the positive. I just want it ratified once and for all and not be the target of all the resentment and comments about how much “I get” and how badly off he is when he lives on 10k PCM . It doesn’t make sense for him to go on like this,…. Thank you though for your comments. This is a minefield and people’s views differ. As for staying at home, i am lucky, yes, for me being with my sons and doing everything I can to feed them well (I cook everything from scratch) raise them to be kind, decent boys and spend time with them is paramount. I wanted to do everything I could to avoid them being damaged by the experience, you see.

HLB - October 11, 2013 at 1:49pm

Yes I agree but as I said I receive 2k PCM as it is in net income but of course that is still less than the 20% purely for child support. 2k PCM is a lot I know. Plus I get constant tirades about showing gratitude, trust me, I do, and have done for years but my ex involves the boys and has aid some horrible things to my sons about me. I have never said anything negative to them about him, only the positive. I just want it ratified once and for all , and sought informed advice here as it seems it is better to go that way than rely on what my ex tells me, and today is bullying about with threats to tell the kids that because I am seeking legal advice they will have to leave school as he cannot afford to pay half their fees. (As I say after child support and half fee payment, he still has 9~10k PCM to exist on)and not be the target of all the resentment and comments about how much “I get” and how badly off he is when he lives on 10k PCM . It doesn’t make sense for him to go on like this,…. Thank you though for your comments. This is a minefield and people’s views differ. As for staying at home, i am lucky, yes, for me being with my sons and doing everything I can to feed them well (I cook everything from scratch) raise them to be kind, decent boys and spend time with them is paramount. I wanted to do everything I could to avoid them being damaged by the experience, you see.

HLB - October 11, 2013 at 1:51pm

Ps the 20% child support figure is on net income! am I correct in that idea?

HLB - October 11, 2013 at 10:28pm

I think one person here should desist from the snide comments and picking at the carcasses of other people’s misfortunes, confusion and consequent queries. No one wants to get divorced. and such comments help no one get to where they need to be. Thank you, Marilyn, for your help and advice. I am impressed that you do this pro bono. it is appreciated

Anna - October 13, 2013 at 8:48am

Hi Marilyn,
I’ve written to you on a number of occasions and have now got my consent order for 60/40 split on house and 50/50 share on pension. The house is up for sale but I really don’t want to leave with my son of 17 doing his A levels. The pension comes into force next November when I reach 60. My ex husband is still working and earning a good wage and I have retrained after being married nearly 40 years and earn basic minimum wage. This has been the toughest time of our lives and had no idea of the destruction of a family it has caused. My question is – is it possible to change a consent order so that we can stay in the FMH. I would give up the pension if necessary – but all advice from friends say not to. I have contacted the pension scheme and they say once a pension has been split, it cannot be changed. I would like to buy him out but do not earn enough at present to get a mortgage. Could you please advise as I am distraught about the thought of leaving my home. I should never have agreed to a consent order but had never experienced such pressure to agree in all my life. Please help, thanks Anna.

Marilyn Stowe - October 13, 2013 at 9:19am

Hi Anna
Generally, without consent of your ex or some very strong evidence of fraud, the answer is no Im afraid. However Im not your lawyer, you must ask him or her, or if you didn’t have a lawyer go and see one with the court order and discuss it.
Regards
Marilyn

Andrew - October 13, 2013 at 11:49am

Anna’s post conceals the enormity which is this: when a pension is split is stays split even if the ex-wife remarries. It should be restored to the ex-husband in the same way as maintenance ends, and ends for ever.

It is also preposterous that an e-wife can apply for a pension sharing order after she has remarried! I don’t suppose it happens very often but it ought not to be allowed at all.

Doblo - October 13, 2013 at 1:17pm

Dear Merilyn
Thank you for your reply, I must agree that yes you can not respond immediately when you have a day job, this is why it has taken me this long to respond back.
I shall go back to your blog above you say if there is enough equity, what is enough equity, I owe 90k on my mortgage, she has obtained valuations from local estate agents of 380k, I have obtained a valuations of 310k, if we go with her valuation that will give us equity of 290k, if we go with my valuation 220k in equity, so firstly how to put a valuation on a property?, if I was forced to sell by the courts, and I put it on the market at the top end of the valuation, what would be the time scale for sale?, as you may be aware how long it can take somebody to obtain a mortgage these days bearing in mind they will have to pay 3% stamp duty.
I cant draw my pension until another 13 to 15 years the same goes for her, the value of the pension are unpredictable at stage, we did have saving of around 75k in cash and shares, which were in a bank in her name only, back in the begin of 2011, now which have mysteriously disappeared, she also had a safety deposit box in her name and her mothers name jointly shared, which we were buying gold jewellery together over the last 20yrs which also has mysteriously disappeared, there were bank saving accounts for both the children from birth none of the above has been mentioned in her eform

Anna - October 13, 2013 at 1:36pm

Thanks Marilyn for your quick reply. I wish I had been advised at the time to keep the house. I think solicitors are there to guide you but we have to make our own decisions as to what works for our set of circumstances. My only option now is to try to get a longer working contract (instead of 4 hours) which is very hard to find where I live and to get a mortgage. I will keep on pushing ahead and try to secure a future for my children and grandchildren but it’s difficult when you reach my age and don’t have the energy I once had. I agree with Andrew that pensions should remain with the ex-husband and the wife should retain the capital. This leaves a future inheritance for the children and the husband can feel relieved that he can retain his pension and maybe enjoy the rest of his life. After all he has worked hard all his life to support his family and this will perhaps set them both free. With kind regards, Anna.

Claire - October 18, 2013 at 1:09pm

In reply to ‘Stitched Up’

I work full time in a very demanding job and have pushed myself to succeed so that I can keep things on an even keel as best I can for the children. However, I pay the full mortgage and also have to pay a substantial loan as I wasn’t allowed to use any equity towards downsizing to reduce the mortgage. By downsizing, I mean moving to a cheaper, quite poor, area so that I could get a mortgage in my sole name as determined by the Order. I have no realistic hope of ever paying off the mortgage and will have virtually nothing left once the Mesher Order is due to be acted on.
I am stressed beyond endurance.

Paul - October 23, 2013 at 8:28pm

Hi Marilyn,
I have an order in place that states i will receive 30% of the equity on my former home when my sons either ends secondary education or reaches 17 next year (whichever is first). The order is my maintainance is the mortgage payment.
My question is
The law has changed so my son has to stay another year. Either 6th form or college. I have no issue in paying maintainance whilst he stays on, but…. What happens to the house?!! Does the order stand because he in effect will have left secondary ed? Or has he?
Thanks

Marilyn Stowe - October 25, 2013 at 5:12pm

Dear Paul
I’m afraid I don’t understand what you’ve written. What do you mean about your sons education? Will he be at school or not? When is he 17? The court does have power to extend time for sale if circumstances warrant however I would need to read the order but quite simply, when does he end his secondary education in fact and when does he attain 17? Which is the first trigger and when?
Regards
Marilyn

Paul - October 25, 2013 at 5:45pm

Hello Marilyn,

Thank you for your reply and sorry for the confusion.
My son should have finished secondary school at the end of June next year. According to my order, it states to be received at this point or 17, whichever is the soonest. Obviously it’s the end of June, but….. The Education Act requires him to stay on another year on an educational course, so he will be at 6th form/college another year.
So, would the order stand at 17 because that would come sooner than him finishing 6th form?
Hope that clarifies it for you
Thanks

Paul - October 25, 2013 at 5:55pm

Marilyn,
The first trigger in the end of June next year (when he should have left) or October when he turns 17. The change in law means in effect a year 12

Thanks

Marilyn Stowe - October 25, 2013 at 6:21pm

Dear Paul
If the order states unequivocally whichever is the sooner then if he is still at secondary education but turns 17 first then 17 must be the trigger.
The best thing is to agree how it will work with your ex but if not, and clarification is required you should apply to the court for a determination as to to how it will work in practice. The court has power to make orders for the carrying into effect the terms of the order.
Regards
Marilyn

Paul - October 25, 2013 at 8:00pm

Thank you

Rose - December 28, 2013 at 11:34pm

We have been married 19 yrs and have two children. my husband committed adultery and left the family about a year and an half ago. we are currently going through divorce. We jointly own a home where the kids and I still reside. We only owe a small amount on the house. Does the Mesher order apply to me if I want to stay in the house with my children until they turn 18. Then we can split the residence or I buy him out. please help

Marilyn Stowe - December 29, 2013 at 8:15am

Dear Rose
It could do. However you can apply for a transfer of property order, a lump sum order and a pension share besides maintenance, with no cut off point. The question is what is best for you? What best suits your reasonable needs in the circumstances of your marriage?
The court has wide powers. It has power to transfer your husband’s share outright to you if appropriate or order you to receive more than 50% of the net proceeds when the house is sold and make an order dealing with who pays the outgoings until sale and maintenance thereafter. Do download my book from the side bar, it’s free right now and it gives much more info.
Please also go and see a solicitor to get tailor made advice just for your case because everyone is different. Don’t do this without legal advice it will affect the rest of your life and after such a long marriage, you will find in law, “you’re worth it.”
Regards
Marilyn

Chris - January 20, 2014 at 10:22pm

Hi Marilyn

What’s the tax consequences under a mesher order compared to deferred charge? e.g CGT. Is there a benefit to one as opposed to other? If your wife cant afford to buy you out of the home i.e remortgage but she can make mortgage repayments (its a small mortgage, but not enough to rehouse us both) can I still transfer my interest to her or will the bank stop me?

Kind regards

Chris

Ian Southwood - September 17, 2014 at 12:25pm

Hi Marilyn.
My ex wife and I are now at the other end… Nine years after a deferred charge Mesher was implemented I’m still living in a 2-bed maisonette, so my son has to share my room when he and my daughter stay over (2-3 nights a week). They’re 18 in May.
Their mother announced on Friday with no warning that she was selling the FMH, who was selling it and the asking price. Also that the children would be living with me permanently (they’re delighted at the prospect and I’m happy with it too, pre consideration) as she’s moving to look after her own mother who lives just over an hour’s drive away. She seems to have set a fair price for the property, though it’s sold within a few hours.
I need to weigh up whether to find a bigger place to rent or to try and buy a modest 3-bed… after nine years my savings have dwindled to almost nothing, which seems to limit my options re solicitors etc.
My head is still spinning… do I need a solicitor of my own or just roll with it, let her organise everything so long as I get copies of paperwork? Do I have to pay CGT on my 44% share? Where do we look for such information? Suddenly the spectre is raised again…

With regards, and thanks for your website,
Ian

Marilyn Stowe - September 23, 2014 at 3:58pm

Dear Ian
Im not an accountant but if you dont own another home I suspect you wont be paying CGT but check with an accountant. If shes selling the home is it in joint names or do you have a charge over it? You need to contact the conveyancing solicitor and find out what the exact legal position is and make sure your share is indeed coming your way and get it in writing.
Personally I always think its worth it to get legal advice to protect you and as I have no idea what happened at the time, and how this was legally structured, Id suggest you do get some legal advice as well to ensure all goes well. You’ve waited long enough!
Regards
Marilyn.

Ian Southwood - October 7, 2014 at 8:14am

Thank you Marilyn – good advice. Turns out I *would* have been liable for CGT except the property/land registry was changed to being in my ex wife’s name only, on solicitor’s advice all those years ago.
Good advice can save good money!
Best wishes, Ian

kate lumsden - October 1, 2014 at 3:23pm

Hello,
I have a meshed order after a protracted battle at court, ending in high court, I am on a v low income and carer of 2 daughters aged 8 and 10. I have an unusual Mesher as my ex tried to say I owed him £500,000 at the end of our marriage, a complete shock to me, the ‘inheritance’ that his father gave us to buy our first house was apparently a commercial loan -all very dodgy and unsecured and basically a massive tax dodge involving off shore investments etc that I didn’t know about. The up shot was as i hadn’t agreed or signed for a commercial loan i won 30% of the equity and he 9or the so called loan company Blevin Franks) has a 70% legal charge over the house. I can live with a new partner and technically move property using any equity (there is a small mortgage) but 70% is payable on my youngest reaching 18.
i am now in the position of wanting to move closer to my elderly parents and would like to buy a B&B business to have an income, my question is, if i use the equity to move and buy another property does my ex have 70% of that in 10 years time regardless of value or just 70% of the equity as it stands. I wonder that if i make a successful business would I have to sell and also be homeless in 10 years, effectively making money for my Ex? or would it be a set amount based on the current situation?
thanks for any help.

Marilyn Stowe - October 2, 2014 at 1:01pm

Dear Kate
If I understand you correctly, if you sell your home then 70% of the net proceeds of sale will go back to your ex. So for as long as you need that 70% whether in this house or another, he would be entitled to 70% of the net proceeds of sale of whichever property you are in, when your youngest child reaches 18. I haven’t seen the order, so I cant be sure that’s what it does say.
That also doesn’t mean he would be entitled to 70% of your business carried on from the house. He wont but you could potentially increase the value of the property because there is a business carried on from it.
If you can afford to move on without using this 70% then the sooner the better, especially if you think you can develop a successful business but you still may be able to find a way round this.
I think you should take the order to get it very carefully checked by a solicitor who also understands your business proposals and get some personal legal and financial advice. Given what you say you might be able to raise the money now and get rid of the problem, or even renegotiate a deal with your ex and his funders if they’re up for that.
Regards
Marilyn

kate Lumsden - October 3, 2014 at 8:51am

Dear Marylin,
Thank you so much for you reply, I thought this might be the case, I am trying to save up to get an hour’s legal advice before the charge is put on the property, the original order said it had to be done in 8 weeks but Blevin Franks (fund) have taken over 24wks so far.
I cannot raise a further mortgage due to my earnings (less than £8,000 last year) I am on tax credits and depend on the child maintenance of £830pcm that my Ex provides. I wanted a clean break but the meshed order was the only solution to house my children, although I now fear that I have forfeited the rest of my life.

jane - October 6, 2014 at 6:44pm

I have just discovered my husband has been lending a drug addict friend money by being his guarantor for a loan and also has committed adultery on several occasions (he admitted it). I earn 16000 and he earns 34000……our house still has a mortgage and I can’t get one as have adverse credit due to him helping friends out and not his own wife!
We have 2 children, one together and one from my former relationship.
What can I expect to happen with the house?
Can I stay here with my children??
If so Would I have to pay the whole housing costs?

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