Key facts
- Mesher order
- Defers sale until a trigger event (e.g., youngest turns 18)
- Both retain interest
- Your ex keeps a share, paid when the property eventually sells
- Clean break alternative
- Consider whether a smaller, affordable home might be better
Why staying might be possible
Children’s welfare is the court’s first consideration in any divorce settlement. This often means:
- The primary carer needs somewhere suitable to house the children
- Disrupting children’s schooling and friendships is avoided where possible
- Stability during an already difficult time is valued
If you can’t afford to buy out your ex’s share but the children need to stay in the family home, there are legal arrangements that allow this.
Mesher orders
A Mesher order (named after a legal case) defers the sale of the family home until a specific trigger event occurs.
How it works
- You stay in the property with the children
- Your ex retains an ownership share but doesn’t live there
- When a trigger event happens, the property is sold or you buy out their share
- The proceeds are then divided according to the order
Common trigger events
- Youngest child turns 18 (or finishes full-time education)
- You remarry or cohabit with a new partner
- You choose to sell
- You die
- You no longer need the property for the children
The order specifies exactly what triggers the sale, leaving no ambiguity.
Ownership split
The order also specifies how the proceeds will be divided when the property eventually sells. This might be:
- Fixed percentages (e.g., 60/40)
- Your ex receives a fixed sum
- Proportions based on contributions to the mortgage over time
Martin orders
A Martin order is similar but typically used when there are no children. It allows one spouse to remain in the property for life, or until they remarry or cohabit, with the other’s share protected.
This is less common in cases with children, where Mesher orders are more typical.
Advantages of staying
For children
- Continuity and stability during upheaval
- No need to change schools
- Keep the same friends and community
- Familiar surroundings provide comfort
For you
- Time to get back on your feet financially
- No immediate pressure to find housing
- Mortgage may be affordable even if buyout isn’t
Practical
- Avoids immediate sale in poor market
- Defers difficult decisions
Disadvantages
For you
- Ongoing financial ties to your ex
- May feel “stuck” in the property
- Responsible for maintenance and repairs
- Limited ability to move on
- Your ex’s share grows if the property appreciates
For your ex
- Capital tied up for years or decades
- No immediate clean break
- Dependent on you maintaining the property
General
- Creates ongoing financial connection
- Potential for disputes about maintenance, insurance, improvements
- Complicated if either party’s circumstances change
Is it worth it?
Sometimes staying in the family home isn’t the best choice, even for children. A smaller, more affordable home might mean less financial stress, which benefits everyone. Consider whether stability in a specific building outweighs the benefits of a clean break.What your order should cover
A well-drafted Mesher or similar order addresses:
Trigger events
- Exactly what triggers the sale
- Whether you have the option to buy out at that point
- Timeframe for sale once triggered
Division of proceeds
- Clear percentages or amounts
- How equity is calculated
- What happens if property value drops
Mortgage and outgoings
- Who pays the mortgage
- Who pays buildings insurance
- Who pays for repairs and maintenance
- What happens if you can’t afford payments
Improvements
- Whether you can make improvements
- How the cost/benefit of improvements is reflected in final division
Occupation
- Your right to live there
- Whether your ex can ever occupy
- Notice requirements if you want to sell early
Early sale
- Can you sell before the trigger event?
- What consent is needed?
- How is the decision made?
Paying the mortgage while you stay
Usually, the person living in the property pays the mortgage. This can be formalised by:
You pay everything
You take full responsibility for mortgage payments, in exchange for which you might receive a larger share when sold.
Contribution to equity
Your mortgage payments might increase your share of eventual proceeds, reflecting that you’ve paid down the debt.
Your ex contributes
Occasionally, the departing spouse continues contributing to mortgage payments, particularly if they’d otherwise pay spousal maintenance.
The arrangement should be clear in your consent order.
What if you can’t keep up payments?
If you fall into financial difficulty and can’t pay the mortgage:
- Speak to your lender about options
- Inform your ex (they have an interest in the property)
- The property might need to be sold before the planned trigger
- Your consent order should ideally address this scenario
Mortgage arrears put both your homes at risk (yours because you live there, your ex’s interest because it’s secured against the property).
Protecting your ex’s interest
Your ex’s share is protected by:
Remaining on the deeds
They stay as a legal owner, so the property can’t be sold without their consent.
Registered restriction
A Land Registry restriction prevents sale or remortgaging without their agreement.
Legal charge
If they’re removed from the deeds, a legal charge can secure their right to future payment.
Relationship with your ex
Deferring sale means ongoing financial connection with your ex. This works best when you can:
- Communicate reasonably about the property
- Agree on maintenance and repairs
- Trust each other to honour the arrangement
High-conflict relationships make deferred arrangements more difficult and increase the risk of future disputes.
Alternatives to consider
Sell and buy smaller
Selling now and purchasing a more affordable property might give both parties a clean break while still providing suitable housing for children.
Pension offset
Your ex keeps more pension while you keep the house – though this requires careful valuation to be fair.
Spousal maintenance
Rather than your ex retaining property interest, they receive maintenance to help you afford full ownership.
Family help
Sometimes family members can help one party buy out the other, achieving a clean break.
Get legal advice
Mesher orders are complex and create long-term obligations. Make sure your order is properly drafted to avoid future disputes. What seems fair now might cause problems in 10 years when circumstances have changed.Understand your housing options
The decision about the family home affects your children and your finances for years to come. A solicitor can help you understand what's possible and what's fair.
Find a solicitor →