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Family law guide
A wife in her second marriage heard her husband say the house had to go. They had no children, and she could not see how she would ever buy another home. Our family law specialists advised her on a Martin order, which let her stay in the home for life while her husband’s share waited for a later sale. This is an anonymised account.
A second marriage and a home she could not replace
Both had been married before. She sold the small flat she owned and put the money into the house they bought together. He kept working and built up a good pension. She worked part time, then stopped because of a long-term health condition.
When the marriage ended, he proposed selling the house and splitting the money down the middle. It sounded fair. Yet her half would not buy a flat anywhere near her doctor or her friends, and she had no income for a mortgage.
If that sounds like you, the fear is real.
What the law says about keeping the home
The court’s powers over property come from section 24 of the Matrimonial Causes Act 1973. Under section 24(1)(a) it can order one spouse to transfer property to the other. Under section 24(1)(b) it can order a settlement of property for the other spouse’s benefit. So a trust can hold the house, with rules on who lives there and when it sells.
To decide what is fair, the court looks at all the circumstances and the factors in section 25(2). These include income, earning capacity, resources, needs, age, the length of the marriage, any disability and contributions. Under section 25(1), a child under 18 comes first. Here there was none.
Section 25A also asks the court to consider a clean break, ending financial ties as soon as is just and reasonable.
What a Martin order is, in plain words
“Martin order” is an informal name that comes from a reported case. It describes a settlement of the home under section 24(1)(b). The terms are written into each order, so they vary. Usually one spouse keeps the right to live in the house, often for life, and the sale waits until that right ends. Couples often agree triggers such as death, remarriage, living with a new partner or choosing to move. The other spouse then receives the share the order sets.
A Mesher order looks similar but usually ends when children grow up or leave education. A Martin order rests on one adult’s need for a home, so it suits a marriage without children.
How we advised her on a Martin order
First, we helped her gather her medical evidence, pension statements and property valuations. They showed that half the equity would not rehouse her. His income and pension, by contrast, meant he could borrow and rehouse himself, which the court weighs under section 25(2)(a) and (b).
Next, we advised her not to ask for the whole house. An outright transfer would leave him nothing from his main asset, and a court was unlikely to see that as fair. A Martin order gave him a real share, only later, so he could more easily accept it.
We then went through the terms with her line by line. No law sets these terms; the two of them had to agree them. We suggested a percentage for his share, so both of them would share any rise or fall in value. She would pay the outgoings, insurance and repairs. Under her proposal, the house would sell on her death, her remarriage, or six months of living with a partner. A clause also let her move to a cheaper home and carry his share across. Finally, we advised her to propose that the court dismiss both sides’ maintenance claims, giving a clean break on income.
What the Martin order gave each of them
She put the proposal to him in writing, with our guidance. After two rounds of negotiation he agreed. They both signed a consent order, and she sent it to the court. A judge approved it without a hearing. Section 33A lets the court make a consent order in the agreed terms using only the information sent with the application.
She still lives in the home. He will receive his agreed percentage when the house sells. Every case turns on its own facts, so this is not a promise about any other family.
What you can take from this
A sale is not the only option. If one of you cannot find another home, the court can postpone a sale. Show your needs with evidence, because medical letters and property searches carry more weight than worry. Get the trigger events right, since they decide when the home sells. Our guide to who gets the house in a divorce compares the options. Our page on the financial consent order explains how an agreement becomes binding. You can also see how we prepare these success stories.
“Unlike maintenance, a settlement of the home made on divorce is not among the orders the court can vary later, so test every trigger now. What counts as living with a partner? Who pays for a new roof? Can you move somewhere smaller and take the arrangement with you? The court weighs both spouses’ needs, so show why you cannot rehouse yourself and how your former spouse can.”
Garry Steedman, Family Law Consultant, Kabir Family Law
Talk it through with us
If someone says the home must be sold and you cannot see where you would go, you do not have to work it out alone. A free initial consultation is confidential and carries no obligation. Tell us what has happened, and our family law specialists will explain your options, including whether a Martin order could work for you.
The legal issue
A couple in a second marriage, with no children, were divorcing. The wife had put the proceeds of her own flat into the house they bought together. She had stopped working because of a long-term health condition and had no income to support a mortgage. Her husband proposed selling the house and splitting the money equally, but her half would not rehouse her.
The law this rests on
- Matrimonial Causes Act 1973 s.24(1)(a): the court may order one spouse to transfer property to the other.
- Matrimonial Causes Act 1973 s.24(1)(b): the court may order that property be settled for the benefit of the other spouse. A Martin order is a settlement of the home under this power.
- Matrimonial Causes Act 1973 s.25(1): the court considers all the circumstances, giving first consideration to the welfare of any child of the family under 18.
- Matrimonial Causes Act 1973 s.25(2): the factors the court weighs, including income, earning capacity and resources, needs, age, length of the marriage, disability and contributions.
- Matrimonial Causes Act 1973 s.25A(1): the court must consider whether financial obligations between the spouses can end as soon as is just and reasonable.
- Matrimonial Causes Act 1973 s.25A(3): where the court considers no continuing obligation to pay maintenance should be imposed, it may dismiss a periodical payments application and bar a further application.
- Matrimonial Causes Act 1973 s.33A(1): unless it has reason to inquire further, the court may make a consent order in the agreed terms on the basis only of the prescribed information supplied with the application.
How we approached it
We helped her gather medical evidence, pension statements and property valuations to show that half the equity would not rehouse her, while his income and pension meant he could rehouse himself. We advised her not to seek an outright transfer of the house, because a share for him, paid later, was fairer and easier to accept. We went through the terms with her, which were for the two of them to agree, not set by law: his share as a percentage, her responsibility for outgoings and repairs, a sale on her death, remarriage or six months of cohabitation, a right to move to a cheaper home, and dismissal of maintenance claims both ways for a clean break on income.
The outcome
She put the proposal to her husband in writing, with our guidance, and after two rounds of negotiation he agreed. Both signed a consent order, which she sent to the court, and a judge approved it on the papers without a hearing. She keeps the right to live in the home, and he receives his agreed percentage when the house is sold. Every case turns on its own facts, and this is not a promise about any other family.
What to take from this
- A sale is not the only option, even where there are no children. Section 24(1)(b) lets the court order a settlement of the home, so a sale can wait.
- A Martin order is built around one adult's need for a home. A Mesher order usually ends when children grow up.
- Show your needs with evidence: medical letters, pension figures and property searches.
- Ask for a fair share for the other spouse, paid later, rather than the whole house.
- Get the trigger events right, because they decide when the home is sold.
- A consent order can make the agreement binding without a contested hearing.
Checked and approved for publication by Hannah Overton.
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