The return of the Mesher Order
With many separating couples struggling to sell their former family homes they are having to come up with more and more creative solutions to meet their future housing needs.
Mediation is the best place to create and explore their options together one option has become increasingly popular over the last year or so as the property market has taken a hammering- The Mesher option
A Mesher order (more commonly spelled Mesher order) postpones the sale of the family home until a specified future event occurs, allowing one party (usually the primary carer of the children) and the children to remain living there in the meantime.
The order takes its name from the case Mesher v Mesher and Hall.
How it works
Instead of selling the home immediately, the separating couple agree that:
One of theme (often the parent with whom the children primarily live) remains in the property.
The other parent retains a financial interest (beneficial interest) in the property.
The property is sold only when a specified trigger event occurs.
Common trigger events
A Mesher order may require the home to be sold when:
The youngest child reaches 18.
The youngest child finishes full-time secondary education.
The occupying spouse remarries or enters a new civil partnership.
The occupying spouse voluntarily leaves the property.
Any others which might be appropriate in the couples situation
After the trigger event, the property is sold and the proceeds are divided according to the shares agreed at the time of agreement.
Why agree to a Mesher arrangement?
Here are some of the factors which might make a Mesher arrangement a good option to consider in mediation:
There are dependent children.
There is not enough capital to rehouse both parties immediately.
Selling the home straight away would significantly disrupt the children’s lives.
The aim is to balance:
the children’s need for stability,
the housing needs of both parties, and
the other spouse’s entitlement to their share of the home’s value.
Advantages
Provides stability for children.
Delays disruption during childhood or education.
Gives time for the occupying spouse to improve their financial position.
Preserves the non-occupying spouse’s interest in the property.
Disadvantages
The non-occupying spouse’s capital is tied up, potentially preventing them from buying another home.
Ongoing disputes can arise over maintenance, repairs, insurance, or mortgage payments.
The parties remain financially linked, delaying a clean break.
Changes in property values or circumstances can make the eventual outcome less satisfactory for one or both parties.
Simple example
A couple own a house worth £500,000 with a £100,000 mortgage and have two children.
Main option explored:
The children and their primary carer remain in the home.
The home will be sold when the youngest child turns 18 or finishes secondary education.
After the sale, the net proceeds are divided according to the percentages specified in the order (for example, 60% to one party and 40% to the other).
It is worth pointing out that courts generally prefer achieving a clean break where possible.
Mesher orders tend to be used only when immediate sale or transfer cannot fairly meet the housing needs of the parties—especially those of dependent children or , for example, where the couple cannot sell their property but want to move on with their lives and agree a final settlement.
The Mesher option is just one of many option to explore in mediation to arrive at a solution that is fair in all the circumstances, meeting the main priority needs of the couple and their children, within the framework of the law.