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Six Things You Need To Know About a Mesher Order

Last updated May 2 2024 | Family Law

by Theresa Wright

by Theresa Wright

Head of Family Law

In this article

What are trigger events?

A mesher order will only be active until the trigger event specified in the order happens.

Examples of the events that trigger the end date of a mesher order are as follows:

  • When children leave home.
  • The youngest child of the marriage reaching 18.
  • The death of the occupying party.
  • The remarriage of the occupying party.
  • The cohabitation of the occupying party.

Pros of a mesher order

When considering whether to get a mesher order, it’s important to know the incentives. The incentives to get a mesher order are as follows:

  • Places the welfare of your children first, allowing them to remain at the same home and school.
  • Avoids the simultaneous stress of going through a divorce and selling the marital home.
  • Can maintain stability for the occupying party to remain in the family home while the children are below the age of 18.
  • Suppose the property is currently in negative equity or located in a promising area. In that case, it’s potentially beneficial to hold out on the home’s sale.

In some instances, a mesher order is the court’s only option to accommodate both parties’ housing needs (and their children). When it comes to the division of the assets in a divorce, the court’s overarching goal is to ensure everyone has suitable accommodation.

Cons of a mesher order.

Before agreeing to a mesher order, it’s important to be aware of the potential downsides.

Some of the considerations to think about are as follows:

  • The non-occupying party will have their capital tied up in the property until a later date – possibly for a significant number of years.
  • A mesher order is only a temporary alleviation of the issue. It will still cause uncertainty for the future, particularly for the occupying spouse.
  • A mesher order means both parties will need to keep in contact after the divorce.
  • You will remain financially tied to your ex-partner after the divorce.
  • The party who remains occupying the property won’t have security. In the future, they will need to leave the property, regardless of whether they want to stay.
  • The non-occupying may be liable to pay capital gains tax (CGT) when the property’s sale is finalised. In this circumstance, the CGT treatment depends on a few factors. These factors include: the details of the matter, when the court made the order, what the triggers are for the mesher order. For more information on the CGT, please visit our recent article on capital gains tax.

How do I apply for a mesher order?

Suppose you and your partner agree on a mesher order during a financial settlement. In that case, your solicitor will draft the order into the financial agreement. Once the order is in the financial agreement, it will be presented to the judge to determine the conditions.

If you and your partner can’t agree on the financial settlement, then one of you would need to make an application to the court for a financial order. Following your application will be a court proceeding to sort out the financial settlement. The judge will make the final court order regarding the finances at the end of the court proceedings.

What are the alternatives to mesher order?

When it comes to the marital home, a mesher order isn’t the only option. The following are a few of the most common alternatives:

  • Sell the property and split the money.
  • One party buys the other out of there percentage share of the property.
  • Transfer part of one party’s share into the other party’s name. The departing spouse would then own a smaller percentage of the property. In this instance, the home sale will mean the party with a share will receive their cut.
  • Leave ownership unchanged. In this instance, one partner continues to live in the house, but actual ownership of the property remains shared.

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