Part of: Financial Settlement after Divorce
A Mesher order is a court order that lets one parent stay in the home with the children and puts off the sale until a set event, such as the youngest child turning 18. When that day comes, the home sells and you each take the share of the money you fixed years before. The court’s power to delay a sale in this way comes from section 24A(4) of the Matrimonial Causes Act 1973. It is one of several ways to deal with the home in a financial settlement after divorce.
If you are trying to keep your children’s lives steady while your own is changing, this guide is for you. It explains the law for married couples and civil partners in England and Wales, including the tax and benefit points people often miss. If you never married, the rules differ, so we cover those too.
Reviewed by: Garry Steedman, Family Law Consultant (Divorce, Children & TOLATA), Kabir Family Law
Key takeaways
- It delays the sale. The parent at home and the children stay put until a trigger event, and then the home sells (MCA 1973, s.24A(4)).
- You fix the shares now. Each of you gets a set share of the sale money, so you both gain or lose as prices change.
- A trigger ends it. Common triggers include the youngest child turning 18, a new marriage or partner for the parent at home, and a death.
- Say who pays. The order should say who pays the mortgage, insurance and repairs until the sale, because gaps cause arguments later.
- Your shares are usually final. The court can vary an order for sale, but not a property adjustment order made on divorce (MCA 1973, s.31(2)).
- Check tax and benefits. Moving out can affect Capital Gains Tax and Universal Credit, so look at both before you agree (HMRC CG65365).
What is a Mesher order and how does it work?
It combines two decisions. First, the court splits the home between you in fixed shares, usually through a property adjustment order under section 24 of the Matrimonial Causes Act 1973. Then it puts off the sale until a trigger event, using its power under section 24A(4). Until then, you both keep your share, but only one of you lives there.
The name comes from Mesher v Mesher and Hall, a Court of Appeal case reported at [1980] 1 All ER 126. People also call it a deferred sale order.
Why would a court do this? Under section 25(1), the court must give first consideration to the welfare of any child of the family under 18. So keeping children in a familiar home near their school can matter more than freeing up cash straight away.
When is a deferred sale appropriate?
Wanting to stay in the home is not enough on its own. A court looks at the whole picture under section 25, including each person’s income, housing needs and ability to borrow. It must also consider whether a clean break is possible (section 25A). This kind of order tends to fit when most of these are true:
- the children are young and need a stable home nearby;
- there is not enough money to buy two suitable homes now;
- the parent who moves out can rehouse in the meantime, for example by renting or with a smaller mortgage;
- the parent at home can afford the mortgage and running costs until the sale.
If the numbers only work by storing up a problem for later, a court may prefer a different option.
Mesher order or Martin order: which fits your family?
A deferred sale is only one way to deal with the home, so it helps to see the options side by side. Treat the table as a starting point for advice rather than a way to choose alone, because the right answer turns on your full finances.
| Option | Who lives there | When the home sells | Main risk |
|---|---|---|---|
| Mesher | One parent and the children | When the youngest child grows up, or on another trigger | Later, the parent at home may struggle to buy again |
| Martin | Usually one person, with or without children | Often not until that person dies, remarries or leaves | The other person may wait decades for their money |
| Sale now | Nobody, because you both move | Straight away | If prices are high, neither of you may afford a home nearby |
| Transfer with a charge | One person, who then owns it | The other person takes a set share when a trigger happens | The owner must refinance or sell later to pay that share |
| Outright transfer | One person, who owns it outright | There is no later sale | The other person needs enough savings or pension instead |
A Martin order, named after Martin v Martin [1978] Fam 12, also delays the sale. The difference is the trigger: it is tied to the person living there, rather than to the children growing up. That person may be able to stay until they die, remarry, live with a new partner or choose to leave, so the other person’s money can stay tied up for far longer.
When does the arrangement end?
The order should list every event that ends the arrangement, so you both know where you stand. The most common triggers are:
- the youngest child turning 18, or finishing full-time education if that is later;
- the parent at home remarrying, forming a civil partnership or living with a new partner for a set period;
- the death of the parent at home;
- a fixed date written into the order;
- the parent at home choosing to sell or move out earlier;
- a further order of the court.
Vague wording causes trouble. For example, “a new relationship” with no definition can lead to a dispute about whether the trigger has happened at all. Instead, the order can say how long you must live together before it counts.
Who pays the mortgage on a Mesher order?
There is no automatic rule. Often the parent at home pays the mortgage and running costs, but it depends on your incomes and what else each of you receives. Put whatever you agree in the order, because gaps tend to surface when the home sells. Cover:
- The mortgage: who pays it, and whether that person gets credit for any capital they pay off.
- Insurance and repairs: who pays for buildings insurance, routine repairs and big jobs such as a new roof.
- Improvements: whether an extension or a new kitchen increases that person’s share.
- Arrears: what happens if payments fall behind, because a lender can usually pursue either person named on a joint mortgage.
- Moving home: whether the parent at home can buy somewhere cheaper, and how the shares carry across.
If you are moving out and your name stays on the mortgage, that debt still counts when you try to borrow for a new home. So speak to a mortgage adviser early, before the terms are final.
What are the pros and cons of a Mesher order?
The same order feels very different depending on which side of the front door you end up on, so it helps to look at both.
If you stay in the home with the children:
- Pro: they keep their home, school and friends through a big change.
- Pro: you avoid a forced sale when money is tight.
- Con: when the trigger arrives, you may be older, with a share that will not buy a new home.
- Con: a new relationship can also end the arrangement early.
If you move out:
- Pro: you keep your share of the home rather than giving it up.
- Pro: your children stay settled, which can make time with them easier.
- Con: your money stays tied up for years, so buying your own home can be hard.
- Con: if your name stays on the mortgage, it can still affect your borrowing.
For both of you, arguments about repairs, payments and triggers can sour the years in between. That is why the details matter so much.
Does it affect tax or Universal Credit?
Tax when the home sells
HMRC treats a Mesher order as putting the home into a trust. Its Capital Gains Manual (CG65365) says private residence relief can be due for the trust period while the parent entitled to live there keeps it as their only or main home. Its worked example also gives full relief to a parent who had already moved out. However, the answer depends on the wording of your order and your own dates, so take tax advice before you agree, and read our guide to capital gains tax on divorce.
Universal Credit while the order runs
If you moved out and claim Universal Credit, your share of the home could count as capital. However, Schedule 10, paragraph 5 of the Universal Credit Regulations 2013 ignores a home you left after separating in two cases. The first covers the six months after you move out. The second lasts as long as your former partner lives there as a lone parent.
That second rule often fits a Mesher order while the children are young. But it can stop once your former partner is no longer a lone parent, which may happen before the home sells. So check how the timing of the trigger lines up with any benefit claim.
Can you change the order later?
Usually not in the way people hope. Under section 31 of the Matrimonial Causes Act 1973, the court can vary an order for sale made under section 24A. However, it cannot vary a property adjustment order made on divorce, because that power only covers orders made on judicial separation. So the shares you agree today will usually decide how the money splits, even if the sale is 10 or 15 years away.
If you both want to sell early, you can agree it. If you cannot agree, either of you can ask the court to decide how the sale should happen.
Can unmarried couples get a Mesher order?
Not in the same form. The powers come from the Matrimonial Causes Act 1973 for married couples, and from matching rules in Schedule 5 to the Civil Partnership Act 2004 for civil partners. Unmarried parents have different routes, even though some of the results look similar.
- Housing for a child: under Schedule 1 to the Children Act 1989, a court can order a parent to settle property, such as a home, for a child’s benefit. Our guide to Schedule 1 claims explains how long that usually lasts.
- Who owns the home: disputes about a home you bought together fall under the Trusts of Land and Appointment of Trustees Act 1996. When deciding whether to order a sale, the court must consider the welfare of any child who lives there (section 15). Our guide to property rights for unmarried couples under TOLATA explains more.
What should the order cover before you agree?
These are the points a workable deferred sale needs to settle. It is not a template, because the right answer to each one depends on your finances, your children’s ages and the rest of your settlement.
- Shares: what share of the net sale money each of you receives.
- Triggers: which events end the arrangement, and how you define each one.
- Costs: who pays the mortgage, insurance, repairs and improvements until the sale.
- Moving: whether the parent at home can move somewhere cheaper, and what happens to the shares if they do.
- The sale: how you agree the price and choose the estate agent when the time comes.
- Death: what happens if either of you dies before a trigger.
- The rest of the deal: how the order fits with pensions, maintenance and any other assets.
A list can tell you what to decide, but not what is fair for your family. Those judgement calls, such as how long a new relationship must last before it counts, are where tailored advice makes the difference.
If you agree the terms, the court usually approves them in a financial consent order. Alongside it, you send a short summary of your finances on Form D81, the statement of information. A judge approves the order if they think it is fair.
Frequently asked questions
How likely am I to get a Mesher order?
It depends on the whole picture: the children’s ages and needs, how much equity there is, both incomes and borrowing power, and whether a fairer option exists. A court will not order one just because one parent wants to stay in the home.
How much does a Mesher order cost?
If you agree the terms, you ask the court to approve them in a consent order, and the court fee for that is £62 (GOV.UK). Fees for legal advice are separate. If you cannot agree and a judge has to decide, the overall cost is usually much higher.
Is a Mesher order a good idea?
It can be, when the children need stability and there is no affordable way to rehouse everyone now. But it can also store up problems, especially for the parent who stays. Whether it suits you depends on what each share will buy when the home sells, not just on today’s numbers.
Can my ex force a sale before the trigger?
Not usually, if the order is clear and you both keep to it. An earlier sale normally needs both of you to agree, or a further court order. That is why the order should say what happens if circumstances change.
What happens if one of you dies?
It depends on the wording of the order. The death of the parent living in the home is usually listed as a trigger, so the home sells and that parent’s share goes to their estate. If the other parent dies first, their share passes under their will or the intestacy rules, and the arrangement normally carries on until a trigger.
How do you apply for one?
You do not apply for it on its own, because it is part of a financial order. If you agree terms, you ask the court to approve them in a consent order. If you cannot agree, either of you can apply for a financial order using Form A, and a judge decides what is fair.
Weighing up who keeps the home? Get advice before you agree the terms
The shares you agree now will shape what each of you can afford when the home sells, often many years from now. Before you commit, it helps to understand how the triggers, the mortgage and the tax points apply to your family. Book a free initial consultation, where one of our specialists gives you initial advice tailored to your circumstances. You can also find out how our specialists assist with a financial settlement after divorce.
Expert Tip
A common problem shows up years after the court makes this kind of order. The trigger arrives, the home sells, and the parent who stayed finds their share will not buy a new home. The split looked fair on the day, but nobody tested it against the likely sale price, the mortgage still owed and that parent’s age and income by then. So before you agree, work out what each share could realistically buy at the trigger date, not just today.
Iblal Iqbal, Partner & Family Law Strategist
