Can I postpone the sale of the family home when separating? A look at Mesher and Martin orders.
When a couple separates, the value of the family home is often the largest asset that they have to divide, and it can also be the most contentious. This can be for many reasons, for example, one spouse or partner may feel emotionally tied to the house, or it may be close to other family members. You both may be concerned about having to move children from the home they have grown up in, perhaps to a different neighbourhood and away from their friends and social activities.
There is also the financial risk, especially with higher interest rates, that it could be difficult to sell the house for a good price to ensure sufficient equity to rehouse each person in a suitable location.
‘While an immediate clean financial break is normally what separating couples aim for, often it is necessary to consider postponing the sale of the family home. This can be achieved through what is known as a ‘Mesher’ or ‘Martin’ order,’ explains Joanne Aggett, an Associate in the family team with WBW Solicitors.
What is a Mesher order?
A Mesher order allows for the postponement of the sale of the family home until either a certain period of time has passed, or an agreed ‘trigger event’ occurs. It is used when there are minor children living in the family home, and it allows one of the spouses or civil partners to continue to reside there with the children to provide them with security. The right to a share in the property can be agreed or ordered. The order will remain in place until the time stipulated in the order, or if the trigger event is reached.
Trigger events typically include:
- the youngest child of the family finishing full time education; or
- the spouse or civil partner, who has remained living in the house, remarrying or occasionally cohabiting with a new partner for a period of time (typically six months).
- the death of your former spouse
- their decision to leave the property.
Once the order comes to an end, the family home will be sold. Then the balance of the proceeds of sale will be divided in line with whatever terms has been ordered or agreed.
What is a Martin order?
A Martin order is similar to a Mesher order in that it postpones the sale of the family home until an agreed trigger event occurs. The main difference is that a Martin order does not relate to minor children living in the house. This order is typically used when there are either no children involved, or any children the couple had are already over the age of 18.
The trigger events in a Martin order usually stipulate the property can be sold if the spouse or civil partner remaining in the home is to remarry. On occasion, a Martin order can be made to cover the whole life of the spouse or civil partner remaining in the house.
These types of orders are usually only implemented when the court is satisfied that the capital from the former family home is not immediately required to enable both spouses or each civil partner to be rehoused. Typically, the spouse moving out of the house will be wealthier than the remaining spouse.
Is postponement the right option?
This decision will depend on your circumstances. In most cases, postponement will only be delaying an issue to deal with in the future.
Often a postponement may be the right option to ensure settled housing for children. For example, if you have very young children, you may not be returning to work until they are at school and postponing a sale could push forward the need to obtain a mortgage until a later date. You could also be tied into a good mortgage deal at the moment, which you would risk losing if the property had to be sold now. A delay is not without challenges, but neither is an immediate sale
It is important to note that postponing the sale of the home is not the only option to enable you to stay in the house. Our family lawyers will be able to advise you on the viability of other options, such as offsetting your interest in other assets to retain the family home without your former spouse or partner remaining as an owner.
How do I get a Mesher or Martin order?
If an agreement can be reached, your family lawyer can draft the terms of the order and apply to the court for it to be considered.
If you cannot reach an agreement, then you can apply to the court for a financial remedy order. The judge, after hearing your case, will make whatever orders they deem most appropriate for the circumstances.
How we can help
If you are concerned over what might happen to your family home following separation, one of our family lawyers will be able to advise you on your options and discuss with you the advantages and disadvantages of postponing the sale. We can also advise you on alternative options, and if you decide to proceed with a postponement we can advise upon the appropriate trigger events are included to protect your interests in the future.
For further information, please contact Joanne Aggett in the family law team on 01626 202335 or email joanneaggett@wbw.co.uk.
WBW Solicitors has offices in Axminster, Bovey Tracey, Brixham, Chard, Exeter, Exmouth, Honiton, Launceston, Newton Abbot, Paignton, Seaton, Sidmouth, and Torquay.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
