Wives and mothers usually wish to remain in the marital home – but it isn’t always a good idea to postpone a sale.
A Mesher order is a court order that postpones the sale of the marital home and gives a chargeback to a husband exercisable on the occurrence of specified events. It originated in an eponymous case in 1980, when the Court of Appeal permitted the wife to remain in the marital home with one child until the child was 17 or further order of the court.
When there are no children, the court can still make a similar order for one party to remain in the marital home and thus postpone the sale. This is known as a Martin order, after an eponymous case in 1978, when the Court of Appeal held that the wife could remain living in the property for the rest of her life. The court postponed the husband’s interest from being realised until then, having found that the husband had no immediate need of a capital sum, and the wife would have had insufficient equity to re-house herself had the marital home been sold.
These types of orders were common in the 1980s and 1990s, when there was a need to keep less wealthy mothers and children in their homes, because there would have been insufficient capital to re-house them. They fell out of fashion because they were fraught with difficulties. These difficulties surfaced when the time periods expired and the houses came to be sold.
Typically, the children had reached their majority by this point. When the mother had to sell the home, she discovered that despite inflation, there was still insufficient equity in her share to enable her to buy another property. The Mesher order had been a temporary alleviation of the problem – but nothing more. In fact, in many cases the woman was left worse off, because her reduced amount of time left in the workplace meant that she was unable to raise a mortgage.
I do of course understand that many wives and mothers wish to remain in the marital home. All sorts of arguments – some practical, some child-related and some plainly emotional -are advanced and it is hard not to be sympathetic. However, a lawyer must always think about the client’s overall best interests not only in the short term. That is what we are paid for.
Last week, the BBC reported that a woman who had taken her much litigated divorce settlement to the Court of Appeal had finally settled out of court with her former husband. According to the Daily Telegraph, “Mrs Bokor-Ingram, 38, had applied to vary the terms of her settlement because her 40-year-old ex-husband allegedly failed to tell her he was negotiating a better-paid job when they split.” Mrs Bokor-Ingram argued that had she known the truth, she would never have agreed to the “Mesher” arrangement that the couple had made in relation to their former marital home. The BBC reported that under the terms of the out-of-court settlement, the ownership of the house will now be transferred to her in full.
I think that Mrs Bokor-Ingram has been fortunate, in that the allegations about non-disclosure enabled her to renegotiate her settlement. A Mesher order is one that I would advise a client to avoid if possible. Such a proposal is commonly made during negotiations by the spouse who continues to pay maintenance.
If the other spouse has hopes for an amicable settlement and wishes to remain in the marital home, a Mesher order can appear to be an attractive option. Unfortunately, it can result in far more long-term problems than it solves in the short-term and – and agreeing to one of these orders can lead to a good deal of regret.
If you are faced with this dilemma, consider the following options:
1. Should you negotiate instead for all the equity in the home, so that you can re-house your household immediately?
Or
2. Should you hold out for a transfer of property order, which would you the entire equity in the house?
Only as a last resort would I advise a charge back – and only then if the wife is acutely aware of the long-term impact of such an order. How will she manage when the charge is redeemed?
But there is also a warning to husbands who might be thinking that this is a good way of ensuring a long term windfall:-A further sting in the tail of a Mesher or Martin order is that the husband may have to pay capital gains tax when he finally receives his payout. This applies if he has purchased a principal residence elsewhere, unless the actual amount to be paid to him from the marital home is specified in the order. However, few husbands will agree to an inflation-hit – and therefore diminishing – figure over a long period of time. It would render their “investment” practically worthless.
Check out our guide to Property Disputes and Divorce.
In these times of increased bankruptcy risks, another important point to consider is the risk highlighted in Avis v Turner, whereby the Trustee in Bankruptcy stepping into H’s shoes can apply for sale due to the deferred charge, but unlike H can effectively sidestep the protections that the MCA order gave W against an early sale.
And its not just the clients who should worry. Lawyers who fail to advise clients about this aspect of the deferred charge could find themselves in a very tricky position when the client discovers that the Order doesn’t mean what it appeared to mean – Burke v Chapman, etc.
Hi i seperated from my husband of 10 years last year we have 2 children together 11 and 13. My husband moved out and rents and wants to sell the house which is soley in his name and was purchased before we were married although we were together. The mortgage is interest only of £180,000 but the house is now worth £300,000. There is only 13 years left on the interest only mortgage and at the end of it we do not have the £180,000 to pay it off. I work part time as i always have and cannot afford to buy him out or take over the mortgage on my own. He would like to move on and buy a place but cannot do so whilst his name is on the marital home. Would i be better to get an order so i can stay in the house until kids are 18 but then split the profit of the house once sold and have no maintenance? Or if i sell it now and can get him to give me all of the profit so his name is off and have monthly maintenance aswell as a lump sum?
Thanks for your query I have passed your details to the Client Care Team who will be in touch. Regards,
What was the reply. I’m kind in the same situation
Is there any precedent for children to be granted rights to family home until the end of their first degree.
You made some good points there. I did a search on the topic and found most people will agree with your blog.
An interesting point this, and the moral for wives seems to be that it could be very risky indeed to accept a Mesher/Martin order if bankruptcy is a serious risk. Another worry I have is that it could easily be used by an unscupulous husband who had the benefit of a chargeback but who was up to his ears in debt, to declare himself bankrupt as a means of realising his interest early. Perhaps our legislators could consider the point ? Wouldn’t put my shirt on it though.
Marilyn makes some good points but I am still rather uneasy. Of course, each case depends on its own facts ; but the law is saying that the interests of the children must take priority over the needs of the parents. I can see the point in this, but the practical effect is to give a great advantage to the parent with care, and is it right that this advantage should linger on even when the children are no longer dependent ? Can it be just that one former spouse may be over-housed, while the other is in a studio flat ? I can see where Marilyn is coming from, but her suggested solution seems to be swapping one set of problems for another.
There is no easy answer to rehousing both parties in a recession. It depends on the resources and reasonable needs of the parties. It is usually the case that neither party can expect to live to a similar standard given the cost of maintaining two homes rather than one.
I have set out options for consideration. None of them are without their pitfalls and my view is that Mesher and Martin orders should be avoided by dependent wives unless they have no reasonable alternative.
[…] Avoid Mesher orders. […]
[…] may remember that I recently looked at the case of a Mr and Mrs Bokor-Ingram. I examined the Mesher order to which the wife had agreed; at the time, she did not know that Mr Bokor-Ingram’s finances […]
[…] judicial discretion to be applied to achieve anything other than fairness, when it is known that divorce can often leave women at a disadvantage. On the strength of these proposals, they would fare worse […]
[…] cannot reach agreement, a court order may be imposed on both of you after a final hearing. Often a Mesher order is agreed upon when the wife cannot afford to “buy out” the husband’s interest in […]
I’m am a NRP and a victim of a Mesher Order which was awarded back in 2002 when my youngest was aged 4. PWC has since co-habited, had another child in FMH, amassed three months mortgage arrears, made no effort to get my name removed from the mortgage at FMH and cashed in the endowments which were due to pay off the mortgage.
I have another mortgage now with my new partner but as a second mortgage, I am being financially penalised (by way of a higher interest rate) on a monthly basis.
I categorically believe that some of (if not all) of the above simply must be an infringement of my human rights. Is there a solicitor anywhere who will take on my case or refer me to a solicitor who will.
I am of the opinion that a court should be held accountable for and manage any Order that it passes and if it is not prepared to dismiss an Order that has been brought into disrepute like mine has and pay the additional mortgage monies on my behalf, then it should be rendered null and void.
For the record, I predicted that my ex-wife would do exactly all of the things that she has and this should be recorded in the court minutes somewhere.
Finally, my ex-wife is still insisting (as she did back in 2002) that she will continue to use the Mesher Order as a stick to beat me with until my youngest is 17 (now aged 11). She has also eluded to the fact that her illegitimate son (who has my surname) will be the next tool used to take the Mesher Order into its second decade.
Any ideas anyone?
Regards, Andrew
‘However, a lawyer must always think about the client’s overall best interests not only in the short term. That is what we are paid for.’
What a naive statement. Divorce lawyers are paid to keep the meter running to earn fees for their firms.
When, as is often the case, the reality of the short term fee racking advice materialises in the requirement for another court case to correct the errors below, the lawyers earn fees again.
The divorce law industry has a basic need to perpetuate fee income through prolonging disputes and profiting from people’s misfortune.
Shortly there will be an order implementation hearing to implement an order made in 1993 to provide a mortgage free house to a young girl such that she could reach a happening event (age of adulthood) without her mother squandering the settlement payment made, or of fear of being put on the street through default on mortgage payments, or of second marriage failure. Something the lawyers couldn’t comprehend due to fee earning blindness.
Supposedly the interests of the children are the guiding principles of family law!!
I have a question as to children when seeking a Mesher Order. If the children are not that of the the ex spouses, then how can a Mesher Order be applied. No maintenance are being paid to the woman as the children are not his. Also what if the children are all over 18?
Would a Martin order be applied in such a case?
Just a little bit confused because this has some bearing on my current divorce proceedings.
Hi Jan
Thank you for your question. I’m sorry but I dont quite understand what you have written. I think you should ask your own solicitor who is familiar with your case,about Mesher and Martin orders and how they specifically apply to your case. However, if you still would like some advice on the point, please give my office a call on 01423 532600 and ask for our Admin Department. They will be pleased to arrange a telephone appointment with a solicitor FOC who will answer your query.
I like your style, the fact that your site is a little bit different makes it so interesting, I get fed up of seeing same-old-same-old all of the time. I’ve just stumbled this page for you 😀
Is it possible to get out of a Mesher Order? I have three children and a complicated consent order involving a Mesher Order. For 6 years now my ex-husband has’nt paid the correct amount of maintenance and has had £10000 in arrears written off yet I am still to let him have 30% of the property I live in with my children, can anything be done?
is it possible to subsequently fight the terms of a mesher order once it has been made.
> presenting a stronger argument that the father should not be able to displace mother from matrimonial home because of abuse and neglect and that 20% of the equity of the house going to him would be inequitable??
this is once the youngest child (me) has completed full time education.
I have a mesher order (still awaiting final draft from court) that I have two issues with. As background, council could not agree on the wording of the order so the DJ called a further hearing for clarification of Judgement.
First Issue. The judgement stated that the Applicant was to ‘…continue to pay the mortgage and any capital element…’ I now have an order excluding capital repayments completely, as the DJ stated at the hearing that his intention in the judgement was for the ‘current’ mortgage at the time of the hearing to continue. At the time of the hearing the mortgage was interest only, although he apparently stated at the second hearing that he did not know what basis the mortgage was at the time of the original hearing.
So using the DJ’s logic, if I had been paying the mortgage including capital at the time of the first hearing, then my ex would have had to continue paying this. Surely the basis for the DJ’s argument is in error. In court, my ex’s financial needs were reviewed in detail, including a claim for spousal maintenance, and an detailed comparative budget was presented and cross-examined. How could a DJ then make a decision regarding capital repayment with such uncertainty over the basis of the mortgage? The result of this means that a £110,000 mortgage will not be repaid however capital was specifically referred to in the judgement.
Second Issue. I see previous references in the this blog to the fact that if the family residence is sold then this is one of the triggers for settling the charge, – as the reason for it being retained is for the children.
My draft order has a clause stating that the Applicant can sell and reinvest the gross proceeds of the sale in another property. There is no reference to this matter in the judgement whatsoever, so how can the DJ in making the order insert this clause. Surely this also goes against normal Mesher Order principles. In theory my ex could under this order sell the house and move presumably anywhere in the world, to Spain for example and I would have no security over my charge.
I have already spent £,000’s on lawyers however my solicitor did not advise me of the second ‘clarification’ hearing, or send me a copy of the draft order before it went to court, so I don’t know exactly what was said by the DJ prior to him making the final order.
Any assistance or suggestions would be appreciated, do you think I have grounds for an appeal? Should I spend more money getting what I believe is fair for us both.
JR
i have a similar problem myself.i dont know where to go in bradford west yorkshire for help getting out of a mesher order.my son is now 18 and my ex husband is pushing for a sale on the house.there is not enough money left to home my son and i if i sell.my son suffers from a mental illness and has recently been sectioned under the mental heath act.if this is not upsetting enough we are both uncertain of our future,can anybody help me.i have been to see several solicitors who dont seem able to give me a straight answer.please help anybody, i am at my wits end and this is making me feel ill with worry.bev
I am now very scared and confused after reading all this! I have a mesher order on my property for myself and my 2 children but have just found out my ex husband who doesnt work and pays no child maintenance is about to declare bankrupsy after running up nearly 25grand in debts. His 40% share in the equity would currently only be at the most 8 grand. Does this mean that the mesher order will not protect me and the children from losing our home if he goes bankrupt?
Im about to go into court and my ex/husband is asking for a mesher order. At the moment I have custody of his grandson who we adopted, but when our son leaves education will I have to sell the property as I am not in the position to buy another property. This would leave myself and my grandson effectivly homeless as I am retired due to disablity and have no income. My ex/husband is the sole benerfical of his mothers property and as she is in poor health will end up financially well off and myself left on the breadline and I will be dependent on the state to keep me. My ex/husband has a well paid job with a partner in employment and has never paid maintanance for his child as I was unaware of his wereabout until he applied to the court for a financial settlement. I feel like I,m just another sastistic of this matter and dont know were to turn.
Hello Marilyn
I separated from hy husband last September following 13 years of marriage, due to his domestic violence. At the time I think I was in shock and was just desparate to get him out of the FMH so I agreed to re-mortgage our home and give him £10k to enable him to rent a one bed flat locally, and he would pay the mortgage for a year. The house is worth £250k, the mortgage is £150k, the monthly repayments are £890. The house is in joint names and we have 2 children aged 11 and 14. My husband has unlimited access to them.
Now he is saying he will not pay the mortgage after the August payment and he wants me to put the house on the market now. This is not a financial decision on his part but an emotional one because he is very bitter about our split and the fact he can no longer control me. He is literally desparate to get me out of the house, and has no thought for the impact this will have on the children. He earns approx £50k and I earn approx £12k as I can only work part time due to a disability. I am not in receipt of Disability Living Allowance but do have a “Blue Badge” so am registered disabled with my local authority. I do not earn enough to take over the mortgage in my own right, as tax credits and child support are not taken into consideration – I believe I will be able to get £550 a month Child Support? However, I would be able to afford to meet the repayments on my own. This would be preferable to me because rent would be around £1300 a month. If we sell, I will end up using all my share of the equity in rent within a few years, so by the time the kids leave home, I will be penniless. Whenever the house is sold I will have insufficient means to purchase a new home so will be renting. I believe he cannot force a sale of the house without divorcing me, and he has no grounds so I am safe for another year. However, what would you advise I do? Would a Mesher Order be a good option for me? Would the amount of equity he was to receive be fixed at the start of the period though, as otherwise I will be paying off the capital and he will be the beneficiary. The bank have refused to switch the mortgage to interest only. Is there any chance he might have to pay maintenance for me as well as for the children? He has a new partner whom he actually lives with and he just keeps his flat on as somewhere to have the kids.
Any advice or help you can give me would be so appreciated as I have no savings and am losing sleep worrying what will happen to me and the children.
I had a Mesher order made in 1991 where I would receive 25% of the house which was mortgage free when my children finished their tertiary education. My ex was allowed to sell the house and transfer it to another. I went to appeal but failed to overturn that order. My ex sold the house and the next and transferred to a third house, when the time came for my money to be returned I was given just £17,000, the original house by then was worth a million. I was not allowed interest on my capital, although I was charged interest on costs put against me. I could have gone to appeal again but had by then be totally worn down by all the previous court cases and lost all confidence in the judiciary. The courts had become totally hostile towards me and I became totally depressed and was given early retirement on grounds of ill health. I was advised by my Doctor to avoid any further litigation if I wanted to survive. My children were turned against me by my ex and obviously that I was seen as some distant wicked type landlord who had some charge on their home. I haven’t seen them for years.
Have been to court twice this year and next one coming up on Thursday, my ex-husband left me and my daughter (his step daughter who is now 19) since September 2007 gone overseas and have not been providing any financial support. He is not disclosing any of his earnings and Judge at the 2nd hearing still concerned about his needs of Section 25 of the Matrimonial Causes Act 1973. However, judge has made an Maintenance Order of which I will never see the money, now I am still waiting for the next hearing of the arrangement of the properties of which the initial order from the 1st judge has made that all matrimonial assets will be transferred to my sole name if my ex is not responding. However, what made the 2nd judge change his mind? Will they use either Martin Order or Mesher Order? I don’t know as at present the properties is negative equity but I can’t afford for a new mortgage if I lost those existing one. I have used Solicitor and Barrister on the 2nd hearing but I don’t see there is any advantage at all, I can’t afford either one of them so I am going in representing myself at the final hearing. Any advice? p.s. I am currently study full time to re-train myself after the divorce as the recession plus stress has been eaten me inside out, I have lost weight from size 10 to size 6 and I barely sleep most of the time. Used to go to see my shrink but she is not available for me anymore, I have to visit my GP regularly but I don’t see the judge have time to see my needs or read the A4 lever arch folder my solicitor and I prepared. Where is the justice?
I rread with interest the article – I have myself just gone thru a year long Ancillery Relief process resulting in my having a Martin Order forced upon me, I have terminal cancer and the Judge has allowed me (kindly!) to remain in home till I die with ex having full poccession when I die and charge on property, I paid for the the upkeep of home and the mortgage with the help from my son who put 50k into home, ex has put nothing in to the home and we have lived apart for over 5 years, now when I die my son will be homeless and not even get a penny back of his 50k, I have several animals that will have to be put to sleep also which may sound petty to others but to me my son animals and home are my world, why should someone (ex) who has contributed nothing in ten years plus be allowed to gain on my death when my own flesh and blood gets nothing (my son is from previous marriage not his) – I am trying to appeal Judge has refused this and am awaiting Counsels opinion however the chance of a appeal is slim and even slimmer that I would win I have been advised, my Barrister on the day was totally useless where as his Barrister tore me to pieces no one took into account the medication I was on making some of my answers confused etc, has anyone has a similar experience and is there any advice anyone can give me to secure my son in the property so my ex cannot get him out or at least without a struggle any advice would be welcomed .
June
June
I am very sorry to read about your case. It must be very difficult for you, so if you would like a conversation with me, FOC please call Morna Rose at my office on 01423 532600 and I will see if I can offer you some help.
Marilyn
Really sorry to hear of some of the horror stories above. It is dreadful that people in vulnerable situations get treated so horrendously. As for an opposing barrister ‘tearing to pieces’ a terminally ill woman – words fail me. How do these people sleep at night? That sort of behaviour should not be tolerated in a courtroom.
Can I just ask a qustion on your post here Marilyn? In what circumstances would a husband be liable for Capital Gains Tax on his portion of the FMH under a Mesher Order? Is there a financial threshold that governs this?
Hi
I am trying to reach a solution to our divorce with the finances but am struggling to grasp what is fair and right. I left my husband taking our 2 young kids. He stayed in the matrimonial home as he had a brain op and suffers mentally with change. after a year we still haven’t agreed the financial split. I thought the house was going to be sold but now he wants to withdraw. He can’t get a mortgage as he doesn’t work but I want my name off the mortgage and my equity out the house. I also think there should be some financial contribution towards the children? Recently i have been offered half the equity in the house and my name off the mortgage, when we split the cash pension.savings was heavy towards him he was worth £90k me £55k which is why i think i should get more equity out the house. I want the kids to have some financial benefit from their father who won’t be working for the forseeable future therefore i was looking into a 15% chargeback being agreed so he didn’t need to find any more money to pay me off in the now, but in the future there should be something for the kids. It doesn’t sound like this is a good idea above tho, i’m now confused.
Hi Dawn
Thanks for the enquiry but there is insufficient information to advise you.
Please call Paul Read at my office to arrange a telephone conversation FOC.
01423 532600.
Must take issue with. Argue for all of the home or equity plus maintenance. Seems too harsh on the man chucked out.
Hi, I am in a mesher contract with my ex wife. She has 75% and i 25% of the property, the mesher was taken out 5 years ago. Even as she is paying the mortgage, and say in 10 years time she has still not given me my percent and then sells. Would i still be entitled to 25% od the equity as agreed even though the cash value will be a lot hihger as the loan has gone down ?
Cheers
David
The order should state when the property is to be sold and how the proceeds are to be divided up. You should be entitled under the order to apply for a sale on the first trigger event if your ex wife is not cooperating.
Remember if you have bought another property in the meantime you may be liable for Capital Gains tax.
I would suggest you take legal advice and have the order fully explained to you, how it is intended to work in practice and when is the earliest time you can expect to be paid.
I dont know whether the property was ordered to be transferred to your ex wife subject to your charge. You need to check in either case whether the formalities were completed with the Land Registry and the Building Society to protect your interest.
Best wishes
Marilyn
I don’t know what to do, it’s my husband who owns the house. We have been married for 4 years (in march). I don’t have any assests, he has a decent pension as well. He wants to settle out of court and keep the house, but thats doesn’t seem good enough for me as I am not sure I would be able to get a mortage.
Dear Turqoise
I do hope you have taken some good legal advice on your position. I dont have a problem with wanting to settle out of court, but I do if you try to settle without understanding your position in law and all your options.
Best wishes
Marilyn
Hello. My wife has decided she wants a divorce, citing intolerablre cruelty (we have nothing at all in common and she now doesn’t love me). She has told me she will get a Martin order as we have 2 girls aged 5 and 3. Is there a set amount I am supposed to pay to keep my interest in the house. We agreed not to sell the house as the equity would be too small for both of us. I am disbled with MS, which will only get worse. Is a Martin order the best way, as we are still friends, although I have slept on the sofa for the past 3 months? I need to get out, and I’m currently trying to gain financial assistance from my employers. She is working part-time and contributes to the joint account – I pay for everything.
Many Thanks
Dear Dave
Your position is complicated. The court looks at both parties reasonable needs in making a financial order, and although there are two children who need to be houses, your disability which as you say is likely to worsen, means that your needs also must be taken carefully into account. That is a reason why you need to take good legal advice to cover all your potential options. You dont give me sufficient facts to be able to advise your further.
Best wishes
Marilyn
Marilyn,
I’m a divorced father of 3 boys who is being made to feel guilty for harming my children’s happiness in my former home where my ex wife currently lives with her partner.
Since mid 2006 I’ve had a 1/3 legal charge share secured to my former marital home which is mortgage free. This is to be paid to me “the husband” on the occurrence of the standard trigger mechanisms..
Remarriage,cohabitation,youngest child reaches 18,voluntary sale,death and voluntary vacation.
Almost immediately after the hearing her partner moved in and have enjoyed the fruits of a rent free home with a comfortable lifestyle also.
I have without prejudice paid my child support every month and do not shy away from the responsibilities I have to my children. I have overnight contact twice a week and also 1day after school at my home to guide and support them with their schooling, and the results are the proof of the pudding. Well balanced and polite children.
However, she does not work and he works part time, when I raised the question over closure on the home between us she then told me was pregnant with his child and have now had another since. Since the settlement was completed I could only afford a shared ownership part buy part rent property which is two bedroom and only on a 15000 salary u could imagine my finances are tight after paying my bills and csa payments but still I carry on. I’m now lucky enough to have met a truly wonderful woman who adores my boys. We have since had a little boy and we all share our home together when my children are over and the cramped space is ridiculous. We have discussed to them a reduced amount for them to pay us so we can get a bigger home but they simply say we will move away and take the boys with us, I’m made to feel guilty for upsetting my kids as they are told I’m making mum force the sale of the home!
As she’s had kids with this man does it in anyway risk my court order
Antony
Again, my apologies for the late reply. From what you write, yiou can apply to the court for an order for sale of the house. The court will take all the facts into account but her cohabitation seems to have been an agreed trigger. I think it will focus their minds on their responisbilities under the order, as to moving away it is often an empty threat. I can only comment on what you write, you should consult your solicitor for advice.
Best wishes
Marilyn
hello im nearing the end of my divorce im living in the home with my 12 yr old daughter i have since met somebody and we wish to live in the home and we pay my ex his share of the equity but he wants a mesher order to be in place till my daughter is 18 … if me and my new partner wish to pay him off do i need to go through with mesher or can my ex delve into all my new partners finances which we dont want this to happen … or should i just do the mesher then triggar it more or less straight away ??
Pam
Sorry for the late reply, I didnt see your comment.
There is no reason why you should not pay him out straight away without any investigation into your new partner’s finances. If he wont agree you can make an application to the court.
Best wishes
Marilyn
Hi there,
I have a property with my ex-partner in France, and we also have an almost 3yr old son. He wants to give me the £20,000 deposit that I put into the £100K deposit. It is unlikely that there is any profit in the property. He is financially stable with thousands of pounds savings, a studio flat, and flat that we share. We sadly never married, and all I ever wanted was a happy stable life for my son and I. Sadly he has left us because he cannot take the ‘pressure’ but I am terrified that I will not be able to house myself with the £50k that I am entitled too. I have followed him to France for his work for the past six years, and been unable to earn much money at all. I even set up my own business there, which cannot operate in my absence, so I therefore loose not only the man I loved and fought for, but also the roof over my sons head, and my source of income, and all because it is his decision. It seems so unfair, and he does not care and has even told me so. I have no cash available so I have an appointment with a legal aid solicitor tomorrow, but I wonder if I could get a Mesher order, and be allowed to sell the flat in France and buy something here in the UK? He does not want me in France anymore, which is fine by me too.
I am terrified that I will not be able to provide for my son. I want at all costs to live from the state – especially when he does have the money to support us. I have to say it is all in order to support and secure a stable future for my son, if we did not have any children I would happily take the minimum money and run for the hills as far away from him as possible. He will not see that I need this to support my son and his future, he will just see me trying to take his money, he has no concept of supporting us, and is very selfish.
I look forward to hearing from you.
Donna
What you can potentially do is make an application under Schedule 1 Children Act 1989 for housing provision for you and your son. This means that your ex partner’s share of the equity in the house or indeed his capital elsewhere, may be used to help rehouse you and your son until a trigger event such as your son leaving school. You can also apply for a lump sum to help with rehousing and there is child support as well. Your solicitor will explain more.
Best wishes.
Marilyn
Hi Marilyn
our marriage lasted 4.5 years , and the child we have is my biological child and my husband has adopted him legally,. we are now divorcing. we both earn well and are same salary, we have one home (matrimonial). will I be able to seek mersher order? I do not have any savings or equity apart from share in this house
Rose
Thank you for your enquiry. It is impossible to say given I have no knowledge of your respective financial positions. What I can tell you is that the court must consider the needs of both parties and in particular the housing needs of the person who will have primary care of the child.
There are any number of considerations:-
Should the house be sold in all the circumstances? Is it unreasonable for you to expect to stay there with a child?
How much of the equity do you need for rehousing you and the child?
What is your mortgage raising capacity?
Can he and you, be reasonably rehoused out of the net proceeds?
Can you afford to buy him out now perhaps for less than his half share and stay in the property?
If not and you can afford to pay the outgoings,and you would struggle to go elsewhere, should the house be sold and be held on a Mesher order and if so on exactly what terms?
This isnt an exhaustive list, but gives you an idea of what you should be thinking about when you take legal advice on your own circumstances with your lawyer.
Best wishes
Marilyn
Marilyn
I’m wondering if I should be seeking a mesher order. Ex wife still lives at the former matrimonial home with our 2 children aged 9 and 14. The property is mortgage free and worth around £300k. The property is three bedroomed with myself paying £150k when the property was bought and my ex wife paying £52k. We also have a second property, which is currently let out and which has equity of £100k. I work full time earning around £1,900.00 per month but am then paying 20% from this for child support. My ex also works , but only 21 hours per week, earning around £1,000 per month. Apart from the CSA payments which I pay her she also receives tax credits of around £100 per week. I am wondering if I should alternatively be seeking an order for sale of both properties – as i am currently sleeping on my mothers sofa- which would allow both of us to be rehoused. I am unable to afford the mortgage on the investment property ( which she is also liable for) unless the property is let out. I am aged 48 and she is 41 and I would be interested whether a 50/50 division of the marital assets would be deemed fair.
James
On the facts as you describe them, and you don’t mention any other assets, I agree with you. It’s up to the court in the final instance if you can’t agree, which I think you and your wife should try and do. In your case mediation might work.
Best wishes
Marilyn
Hi Marilyn
I have 2 children aged 9, I am currently going through divorce proceedings and my husband is desperate for me to leave and and seeks a 45/55 split of child contact even though I have given up a career to care for them and only worked part time around the children. He also wants to settle out of court.
He has several businesses and earns a good wage, we bought the house together 12 years ago, I am so concerned about the future and don’t know what to do for the best in the long term..
Hi Marilyn
I have 2 children aged 9, I am currently going through divorce proceedings and my husband is desperate for me to leave and seeks a 45/55 split of child contact even though I have given up a career to care for them and only worked part time around the children. He also wants to settle out of court.
He has several businesses and earns a good wage, we bought the house together 12 years ago, I am so concerned about the future and don’t know what to do for the best in the long term..
I have been divorced for a year but unable to come to a financial settlement, we both would like the house to be left to the children after our days but cannot trust ex husband to do this he currently lives in the house, is there any order that can be made that if he sells or remarries that could come into place that he would have to pay me half of the equity
Hi Marilyn,
I am in a mesher contract with my ex-husband since 1998.I raised our four children so therefore had little time in the work place to build any pension and I am on low income around £9,800 per year. My ex-husband took me to court to enforce sale of our property and had a barrister, I represented myself as I cannot afford a solicitor. The judge directed mediation and also wants details of my ex-husbands income and liabilities. I had provided mine in form-E .I believe my ex-husband is on a very good income around £70k a year and 2 private pensions and a jointly owned property he has with his partner (whom he was having an affair with whilst I was pregnant with our twin boys-now 19) worth approx. £535,000. The judge asked his barrister if his application was based on needs and he replied it was not. He just wants his money.
The split is 50/50 which would not give me enough equity to buy a property outright for myself and my 2 sons now 19 and daughter who is at university and I often have my grandson stay with me- it is still the family home. I have no mortgage raising capacity and have had this in writing. The FMH mortgage has now been paid off-I borrowed £13,000 from my father as my ex stopped paying the mortgage last year. I am so very worried as to what is going to happen?? I don’t think my ex-husband will agree to mediation (I have advised his solicitor that is what I would like to do)-which would then mean going back to court again and then a judge will decide and is much more costly-which is money I don’t have! I need the mesher order to be varied as I need a higher split -is this possible?? Will the judge take into account my needs to re-house myself and children that are living at home with me and they do not have the finances to buy or rent a property.
I am 52 and do not need to be going through this. I don’t think my ex is being reasonable as he has a home and his application to court is not based on needs. My ex has rarely seen our children over the last 19 years and left all parental responsibility to me. My ex-husband has never lived at the house that he wants his share out of as he agreed to me moving area to be nearer my parents and the mortgage remained the same and the mortgage is in our joint names. I am at my wits end as my future is so uncertain.
I look forward to hearing from you.
Jill
This looks serious. Please get in touch with my office, speak to Morna Rose and let’s speak by phone. 01423 532600 gets you through to all our offices wherever I am. I will need to see the original court order and the current application plus all the rest of the current pleadings including the latest Court Order before our conversation. There will be no charge for my advice.
Marilyn
Hi Marilyn
I am just about to make my husband an offer to buy him out of the FMH (around 20% of the equity minus some debts of his). I think he will refuse the offer and I have no more money so I think this will result in a mesher order (2 children 2 and 5- adequate house but no more). I have read that its my responsibility to make the mortgage repayments which I can do on a interest only basis, but does he have to pay me some money (in the form of SM) for the upkeep of the house ? He will claim that he can;t afford to but this is because he has very expensive taste in clothes, is renting a more expensive flat that he needs to and has large credit card debts. So would that mean he doesn’t have to if he ‘can’t’ in theory or could it be ordered that he lowered his outoings ? Also what is the usual or most common split of equity that is agreed in a mesher order when children reach 18 or one of the triggers occurs ? Is is 50/50 or will the fact that I will have paid the mortgage (and probably all the maintenance) all the time and will doubtless still have to buy a place big enough to house the children as they rarely leave home at 18 be taken into account and a larger % be awarded to me. I really appreciate your thoughts Marilyn.
Katie
Did you know you could apply for a transfer of property order to your name in which case there would be no payment at all? Or that the court could award him the sum you can afford? Or that even if a Mesher order is made (and the courts don’t like making those orders because it could leave the poorer party unable to rehouse in the future)the slit is not an automatic number and the court can still require your husband to make substantial income payments to enable you to afford to stay there?
The fact is there are many possible permutations and that is the beauty of the law, it isn’t a one size fits all.
I would strongly suggest you take legal advice with full details of your respective financial position. Don’t dream of making an offer without it.
Best wishes
Marilyn
Hi Marilyn
I have read with great interest all the posts regarding Mesher and Martin orders, as they were mentioned to me by my solicitor.
I believe myself to be a balanced person, with the needs of my children at heart, after separation from my wife 17 months ago.
Maybe you can offer a modicum of advice for me, as there is so much information out there it is confusing and bewildering.
Basically, we were married for 18 years, 2 children (10 and 17 now.)
Joint mortgage of c. £80k, house value c. £240k.
Wife’s net income c. £1500 per month
My net income c. £3000 per month.
Wife received tax credits, family allowance etc, along with £624 per month from me for child support. I also pay the morgage of c. £400 per month and all the endowments/ISA’s attached to it. For a period of around 8 months I also paid all household expenses other than food.
I would like the children to be able to stay in the FMH, but need to move on, and the financial burden would be extreme for me. My “ex” believes she cannot afford to carry on living in the FMH, but also can’t afford to go anywhere else, which is a problematic way of thinking.
I would like things to be “fair” but am struggling to come up with any kind of solution that she may agree to.
I am currently living with my parents rent free.
Any help you could give me would be most welcome.
Thankyou.
Best wishes
David
Hi David
It wouldnt be appropriate for me to get involved as you are retaining a lawyer. However generally the court looks at needs, housing and income. Your info is silent as to how much both of you need to rehouse and how much both of your need by way of income as a result.
once you have those figures, I think the issue becomes easier to resolve.
Regards
Marilyn
I left my husband last year & took my 2 children who were then 4 & 2. My son who is now 5 has autism and needs 24 hr care. I have been unemployed since he was born and am unlikely to be able to go back to part time work without expensive re-training which I have been unable to afford due to crippling legal fees. I am at financial resolution point in the court and my ex is attempting to get a deferred order so that I will have to give any percentage over 50% that I am awarded back to him . My problem is that my sons disability does affect the rest of my life in terms of earning capacity and care. It is very very unlikely that my son will leave home at the time other children normally do, if at all? So I am effectively tied for the rest of my life as a carer. I am also unsure how this would affect me if I gave birth to another child too? Would I then have to sell family home to pay my ex husband back because I have had another child? My ex has full family support from both his very wealthy family and emotional support from my side of the family, I have been disowned by everone, I have no emotional support at all. Because I refused to put up with the emotional abuse and drug use psychosis after 15 years he has made it very clear that I should get ‘bare minimum’ after what I have done (his words). I am currently cohabiting at the moment in a relationship that’s in its very early stages. I really have no plans to buy property with my current partner, as the thought of going through anything resembling this again is just too much to bear and could not guaruntee the security of this new realtionship. Please could anyone let me know my options and the likelyhood of terms being imposed on me via my ex so that he effectively retains control of me for the rest of my life. What is the likelyhood of me securing a capital lump sum order with a view of bequething the lot to my children only. Can someone, anyone help please???
Dear Worried Mum
From what you write it seems that you are paying a solicitor for advise in which case, use him or her!
The circumstances you outline are all very relevant including your cohabitation with another partner.
This really is a situation where if you have a lawyer, take some advise from someone who is fully aware of all the facts and can discuss the range of possible outcomes with you in order to help you try and reach a sensible resolution.
Best wishes
Marilyn
Hi Marilyn,
I have reached a sticking point as there are 3 mortgages on the FMH totalling 210,000. One of which is interest only (£115,000). The monthly mortgage payment is £650. If I was to rent a smaller property In the area the monthly rent would be around £1,300 (at present there are no such properties available for rental). In this case, as I am a stay at home Mother, but am happy to find part time work, would it be better to enter in to a Mesher Order? as the monthly bills would be half and the children would remain in a secure/safe home. Also we have debits totalling £15,000, would it be wise to remortgaged to cover these? House market value is around 360,000. Any advise will be greatfully received.
Hi Marilyn.
When my wife and I divorced in 2005, fairly amicably, I agreed she could stay in the marital home as she worked from home and to help give the children a stable home environment. The court order states she has to repay my xx% when the children reach a certain age, or if she marries or cohabits for more than six months. She met a man in 2006 and they were engaged in ‘07. They are staying engaged, living separately, and so not repaying my xx%. I’m forced to continue renting, which is a drain on resources and leaves nothing to pay into a pension or savings… Is there a clause whereby being engaged for so long can be accepted in law as being married, so they have to ‘do the honorable thing’ and return my share? I know it makes no difference, but we were only able to afford the house thanks to a sizeable inheritance from one of my grandparents.
Thank you for any comments you may have.
After a long term marriage (15 years plus), if independent qualified doctors confirm a husband was subjected to long term emotional abuse by the wife, and there is evidence of physical assault by the wife, will this make any difference to the financial orders?
It might. Misconduct can be taken into account but it has to be very serious indeed. If needs are affected by that conduct such as inability to work that might be taken into account too.
Regards
Marilyn
Hi Marilyn, my mum died recently and left me her daughter, sole trustee and executor of her will. Not long after a letter dropped on the doorstep from Legal Aid, saying she owed appox £12,000 pounds to them for her divorce. I have since found out that my father has a Martins order for 7% on the sale of the house house. Can i sell the house to my husband for £100 and give him 7% of that amount or do i have to sell for its genuine value and give him his 7% of that . I am so confused about all this i don’t know where i stand legally , any help at all would be useful thank you so much.
Hi Carole
What you are suggesting could be construed as a potential fraud on your father. You could try and negotiate the sum down with him, but otherwise you must proceed in accordance with the court order.
As executor you have an obligation to act at all times diligently and honestly. So if there are debts to be paid out of the estate, they must be paid.
Best wishes
Marilyn
Hi Marilyn
I am currently being pertitioned for a divorce by my husband. A year ago he has a breakdown and suffered severe depression and basically our marriage never recovered. He is contesting unreasonable behaviour on both parts although I am not sure this is entirely true or what it would mean if I agreed. However since his breakdown in February and subsequent lack of work and money I have managed to scrape by and pay all bills including mortgage since that time. He stayed with his sister from May until xmas where she couldn’t take him back because of her own situation being difficult. He has stayed on the sofa ever since and uses all ameneties. He pays me £20 a week cos he is on job seekers and pays for some of his food. He has said we can go for a mesher order on the house to enable me and the children to stay here but reading about it it means we will have to sell or I will have to buy him out. We bought the house in 2004 (November) and he stopped paying towards it Feb 2012. He has no intention of paying half of the mortgage as he said he will need to pay for his own residence and the council won’t house him because he is on the mortgage so technically has somewhere to live. The mortgage company won’t take him off the mortgage unless I buy out £50k. My concern is if I continue to pay the mortgage alone I don’t see how he can be entitled to ‘his share’ at the end of a mesher order. Surely he would have to pay into the mortgage for that to happen? Also he thinks he is entitled to his share because he has paid in (and lived here) until 2012 (its annoying becuase he acts as if the payments went into some savings account and now he is entitled to what he put in). Please advise
Thank you Z xx
Dear Marilyn,
I have just gone through a very acrimonious divorce as my husband refused to settle knowing I would reach a point of not being able to afford legal representation. After the FDR at which the Judge gave a fair recommendation which I was prepared to settle my husband refused and it went to a final hearing. The judge at the FDR said ‘ there is not a judge in this land who would not see what you have done regarding the business as unlawful and the wife should be compensated. It was very complex as we were 50 – 50 directors in a joint company that my husband removed and set up a like for like company taking all the clients and £30,000 company funds which he proceeded to spend. He also stopped paying me my 50% share and I went from earning £5000 net per month to £1200 with my husband running down the business whilst he refused to settle over a year. My corporate lawyer wrote a letter for the FDR explaining his unlawful action and the Judge agree which is why the settlement recommended at the FDR was fair. I had no choice as I was £45,000 in debt with no job and a 2 year old to represent myself or accept his very small offer. My barrister and solicitor st the time said I had a strong case and should represent myself rather than settle. Unfortunately at the final hearing the Judge believed his barrister and i didn’t stand a chance, I was completely out of my depth and could not put my case over in a way the judge could understand. It was a 3 day hearing and we had 10 bundles which the Judge did not want to go through. His barrister was very good and I left there with very little. I got 52% (£124,000) equity split in the FMH all his debts were paid from the equity and the company debts that my husband built up before the equity split. From his reduced net monthly income of £6000 previous earings were (£10,000 net pcm) I got £1500 pm maintenance order and he refused to address child maintenance so I have gone through the CSA who have awarded me £5 per week. He told the Judge that the CSA would award our daughter £800 per month and this should be taken into account when looking at my maintenance. This is because he runs his own company has not declared his full dividend payment. The Judge gave me a £40,000 charge back which I do not want as I can only afford a 2 bedroom flat and when my daughter is 18 I will be 55 and can not afford to give him 25% of my property. He has a £260,000 pension pot and I got the very minimum of 14%. There is an order to sell the house but I can not afford to move out due to the amount of the CSA . I am not working and can not afford child care to work. I did not agree with the court order as his solicitor put it together and there things in it that were not agreed in court but the Judge agreed the order. They are pressing for me to apply for the decree absolute and I can not afford to do this but it is in the court order that I do. My husband is cancelling my telephone, internet and sky and deducting money from my maintenance although the court order states he should pay all utilities and bills that her has been paying up to that point and should pay me £1200 pcm. He wants to come to the FMH to look around although he has no items here. I have started to see someone although very early days and I have no intension of him meeting my daughter for quite some time. My husband keeps taking pictures of his car on my drive. I have a clause in the order that my maintenance will stop on cohabitation after 6 months although this was not stated by the judge at the hearing his solicitor put this clause in, I wrote to the judge asking for the clause to be removed as this is the only compensation I have from the company that last year the net income was £120,000 that my husband will now earn. I have been completely railroaded during the final hearing and I dont know if I should appeal now my husband is not being transparent with the CSA and I am left with just my maintenance of £1500 pcm once the house is sold and £1200 pcm until it is sold. The judge completely agree with his barristers proposals and I left feeling completely violated. There was such a huge difference between the FDR recommendation and what the judge at the final hearing awarded me and i was completely walked over in court. His barrister got me in a room and said that if I didnt agree to the chattels that my husband wanted by the count of 3 the entire contence of my house would go to auction. I can not live off the amount awarded I can not afford legal advice and feel that I have been violated because my husband had the money and I was living off and supporting our daughter on a credit card. He stated to the judge he was in hardship and 1 month after the hearing moved out of a 1 bedroom flat into a 4 bedroom detached house whilst I can not afford to rent a 1 bed flat and support myself and daughter on £1500 if the house sells. Could I appeal, can I stop him from constantly coming to the house, do I have to apply for the decree absolute and is there a reason why they are pushing me to do this and can I appeal the court order that his solicitor wrote and added things to. I feel so bullied and I have lost everything financially but more importantly this has destroyed me and I am now so worn down and bullied I have little fight in me and I am so worried about my future. I would very much appreciate some guidance.
Many thanks
Sam
My husband still has several thousand pounds to settle against the consent order from our divorce. He is in the process of selling his house, can I place a legal charge on the house. I have no interest in this property which he inherited.
Many thanks.
I entered into a mesher agreement with my ex wife in 2007 when we divorced . Her share is 70% and my share is to be 30% upon my youngest reaching 16 years old or other provisos. When we divorced the mortgage was 82 k and the property was worth 230 k . My name has been removed from the mortgage and it is solely in my ex wifes name. I have recently found out that she has extended the mortgage to purchase a car and only pays interset only on the mortgage which means that my 30 % instead of increasing is actually de creasing.Could you please advise if my ex wife is entitled to do this . It doesnt seem very fare to me and i would not have entered into the agreement knowing this.
Dear Darren
I think you need to take legal advice.You need to calculate how much you have lost so far and inform your solicitor. When the order was made, I think it should have been registered against the property to protect your interest and prevent her from dealing with the property without your consent.
Given that the property has been affected, it may be possible for you to apply for an order for sale and a determination by the court of the amount you are due, or a declaration of your interest when the property is sold.
These are thoughts not specific advise, your solicitor will advise you.
Best wishes
Marilyn
Hi Marilyn.
Further to my previous email (Jan 30th). My younger two children are 16 in May (my eldest child is 22 and has left the nest) and have been living with their mother in the FMH since she divorced me in 2005/06. One of the twins has been asking me (with no prompting!) if he can move in with me, owing to his mother’s ongoing unfriendly, unreasonable behaviour. I know he can do so when he reaches 16 in May. If he does, and his twin sister remains with mother in the FMH, would this be cause to readdress the Mesher agreement? If my son does move in with me, he would still be sharing my bedroom as I can only afford a two-bed property in this area. This isn’t normally considered acceptable for a young man – or for an adult man still looking to find a long-term partner.
A solicitor has suggested the FHM would remain with the mother as long as one of the children stays there. This seems unreasonable, and has been costing me sleep. After seven years it’s depressing too, knowing there are yet another five whole years to go (end of degree-level education) before she will be legally obliged to return my share of the FHM.
Many thanks,
Ian
PS I did no wrong in my marriage – she was my first and only partner for the duration.
Dear Ian
I have not seen your order so I’ve no idea what it says!
If you have liberty to apply under the order which may well be the case then you must decide what to do in conjunction with the legal advice you are taking.
Regards
Marilyn
Dear Marilyn
After suffering abuse within my marriage I divoreced my ex two years ago. I was forced to go to court as my ex wanted the FMH to be sold and I wanted myself and our small children age 5 and 7 to remain in the home, our last remaining piece of security in uncertain times. A mesher order was arranged.
Despite putting up 50 grand into the FMH from a previous property my ex was awarded 47% of the house. I was supposed to recieve £62o a mnth in spousal and child maintenance. I have now been told that he can no longer pay maintenance as he is in debt after leaving his job voluntarily. Is it possible to change his percentage of the equity now he is not paying anything towards the children?
I still need to remain in the property for the moment as my business is based in the home, if I lose the home I also lose my job. He has voiced concern about the children losing their home when the children turn 18 and may agree to sign the house over to me now. Could this be arranged or is a mesher order set in stone? Despite working I am on a low income and I am totally in despair. Please Marilyn could you advice?
Dear Claire
Dont despair. Nothing is insoluble!
I havent seen the Order so cant tell you what it says or what more can be done but your solicitor could.
It is always open to the parties to agree to vary an Order and you may be able to secure unpaid maintenance arrears against his share of the property. It seems wrong for him to have voluntarily given up a job in this way.
Personally if I were you Id try to negotiate a deal that ends matters once and for all.
Regards
Marilyn
i am living with my 3 children in my partners house .the house is still in joint names with his ex wife, she lives abroad has remarried and has a new home they divorced under canadian law, one child from his marriage lives here with us the second child lives in canada, initially she emailed to say she wantd nothing from the house thn 2 years on has changed her mind and wants her half,she has a large home bought in canada and does not need to work due to his job and housing climate he can not afford to buy her ou talthough he made her an offer of 30k which she declined he cannot give her half as tht will leave him with next to nothing not even enough to secure a property for himself and his daughter, i think he should fight it in court but hes reluctant, i have heard in some cases the spouse in the family home living with the child maybe entitled to two thirds of the property..is this right his daughter returned to the uk for stability and is doing exams soon she has made new friends and wants to sty in the area. ..would the court take my housing needs with 3 young children into consideration at all as we are a family unit now and if he sold gave her half we would live apart and we would be homeless.
Dear Marilyn,
I have a mesher agreement that was made in 2001. when my Wife left me and the children who were aged at the time 12,10 and 6, the divorce went through easily enough.
When it came to sorting out the finances side of the relationship it went wrong.
I was given residency of the children, and even after mediation and me offering my Ex a sum of £ 20,000 pounds (about 20% of property value at the time) she refused so I told My Solicitor I would settle for the house and no maintenance from my Ex. The judge concluded that my Ex pay no maintenance as she was depressed and unable to work ! I was then given the bombshell that when my youngest reached 18 that I would have to give my Ex 40% of the value of the property at that time ? I was totally shocked and wondered how the Judge thought I could work and bring up my children and pay the mortgage for the next 12 years !
Anyway long story short my youngest turned 18 in January so where do I go from here, have not heard from her Solicitors yet so don’t know what to do.
I can not use my Solicitors again as her solicitors merged with my Solicitors 3 months after the court hearing so I assume that would be conflict ?
Thanks for your time Marilyn
Jonathan
Dear Jonathan
It seems like there is a conflict now in relation to the solcitors.
I havent seen the order so dont know the exact provision, but if you are obliged to pay that sum under the order, then it would appear you are bound to do so. You havent explained any circumstances why not? Are all the children in tertiary education? Is there an argument to postpone sale until they have all completed their education?
If the court has ordered you to make payment now then I would contact your ex and suggest you pay her a sum based upon the average of three valuations and pursuant to the relevant provisions contained in the order. She could potentially force a sale if you fail to pay and seek interest until the money is paid.
Regards
Marilyn
Dear Marilyn,
I wanted to ask if you think I may succeed in an appeal again financial. As a mother of two v young children I have been left with 80k debt despite working full time and my earnings having been damaged in financial services due to damage to credit rating. Ex is walking away with a flat of which i was joint mortgagor but not on deeds (dont ask he was a bully)I have been left with property but told i must pay off his debts and his CSA arrears were written off. There was not a proper disclosure made by ex to accompany form E and I was therefore prevented from equality of arms….
Hi Marilyn
I have had a 40% charge on a Mortgage free property since 2001 where my now 14yr old son lives. My ex has had 2 different partners living at the property, 2 more children and remarried the second partner over 4 years ago. She refuses to pay me my 40% saying she can not afford it as neither her or her husband work. Any advise is on the matter is greatly received.
Kind regards
Paul
Hi
I write to you with reference to my last letter dated march 27th 2012.
After my last letter i followed your advice and gained some legal advice from my solicitor regarding my 1/3 share in my former home.
The advice given was to best leave the situation until my youngest finishes full time secondary education, whereby the legal charge may be enforced without applying unnecessary pressure in my children whilst they finish their schooling.
Just recently I was passed a bomb shell that my ex wife is now expecting her third child with her partner, not to mention my 3 children living in my old home.
I beginning to really worry that when my youngest son from the relationship who is now 14 reaches the end of his full time secondary education, my ex wife may be able to argue or try to have the legal charge enforcement cancelled…
do i need to worry…. im in a terrible mess about all of this and the pressure is taking its toll on my relationship with my children and we cannot move for our current space.
Dear Anthony
To me it doesn’t seem right in principle that your interest in the property should remain tied up when your ex is living there with a new partner who presumably works and as you no doubt see it is being housed at your expense. I haven’t seen the court order, but now she is also starting a new family with him so I can fully understand your position. However I also understand the intention of the original order which was presumably the need to keep your children housed.
I cant advise you what to do, only you can make that decision, and in any event I don’t know what the financial position of the new partner is, and that of your ex wife as compared to you. The court will take all the financial circumstances into account before ordering a sale and I don’t know how they all balance out. Have you spoken to them and asked them to buy you out? Could they afford to do so if you apply for an order for sale?
Regards
Marilyn
Hi again
he works self employed on a part time basis, during the summer and autumn.
its frustrating for me as he has other children from other relationships he does not support… they are on a winner!!
im intimidated by their rash and threatening manner… and when i asked for my share they said they will move away.
Also is there any support groups you could suggest i could try, to get the personal and professional help i crave.
I now fear for my next step.
My new partner received a 30% charge on his former martial home (mortgage-free) in his divorce settlement earlier this year – his ex-wife having tried to get the lot + child maintenance + personal maintenance amounting to more than he actually earned! To cap it all his ex-wife has alienated their formerly loving children against both him and his entire family (so a genuine case of Parental Alienation Syndrome, for which there remains no legal remedy in this country). Now, having pleaded poverty at the financial hearing (she has two degrees but doesn’t want to work full-time despite their two children being teenagers), his ex-wife is seeking to buy him out less than a year later. But what my partner wants to know is where did she suddenly get the money from if less than a year ago she claimed not to have more than £80k savings, and does this mean she was concealing assets during the financial resolution hearing when he was 100% honest about his? Not only is she seeking to buy my partner’s share out well below the market value of the house (she had it deliberately undervalued by nearly £100k, compared to what other houses in the street are going for, though this valuation is now over a year out of date in any case), but even if they get an accurate and independent valuation of the FMH done and he agrees on price, how can he ensure that she actually HAS sufficient money to buy him and is not trying to cheat him?
It is not just men who can be corrupt and malicious, but there is virtually no advice on how men can receive a fair divorce (and that is all my partner has ever sought, for unlike his ex, he wishes his former spouse no ill, despite having been to hell and back with her during the latter years of their marriage and divorce and his ongoing emotional agony over not seeing his children.
Dear Marilyn,
I would like to ask if human rights issues can be taken into account in the terms of a Mesher Order. A Judgement has been made for me to be housed on Mesher Terms. My husband has worded his draft of the order that I am unable to cohabit with anyone or remarry and if I do his substantial charge will be called in. (ie. the children and myself will loose our home) he has also put other clauses along the lines that he has to agree to practically everything from where I live,the house I buy,and what I do to it.
My husband is extremely controling and emotionally abusive, as a result I have in the past had the support of domestic abuse services,the police and childrens services. Can it be right that after all I have been through in order to be ‘Free’ of him he can now control my future by making it impossible to have a serious relationship and move on with my life?
Your advice is hugely appreciated. I can’t even put into words how hopeless the future seems.
Thankyou.
Dear Jan
You are seeing this from the wrong perspective.
A Mesher order is only made in circumstances where the court believes the recipient should wait for his share, and usually only because there are children who need to be housed. However the existence of a Mesher order does not mean he should have to wait for ever.
Your husband hasn’t worded anything. Only the court can make an order and it is usual for the house to be sold if you remarry or sometimes if you cohabit because its unfair for another man to benefit from what is rightfully your husband’s.
The court can make a Martin order which allows you to live in the house for life but again only in exceptional circumstances.
So by all means get on with rebuilding your life and when the time comes, you could either buy him out or sell the property. If it is possible do it sooner rather than later as property prices go up.
Regards
Marilyn
[…] out of, obtaining a second one for a new home can be challenging at best. Either discuss a deferred Mesher Order with your solicitor, or talk to different lenders to see what they can offer. There is no point in […]
Hi Marilyn
I am just wondering how a mesher order is setup. Do the Court inform the mortgage company or the land registry? How is it enforced? Is it automatic or do you return to court when one of the conditions is met, remarrying etc.
Many Thanks
Yvonne
Good Morning Marilyn
I will soon inherit about £60 k from my fathers estate I am also i nthe midst of a divorce on the grounds of my husbands 2 x adultery. As a consequence he is seeking to force me to sell the FMH based on this and that this money will allow me to obtain a mortgage in my own right thus enabling him to stop renting and buy again. we have a son aged 10 and i have an older son from my first marriage still living with me.I work only part time and have been advised that even with a deposit I am a high risk borrower with only £70,000 max able to borrow based on my small income and tax benefits and child maintenance and would still need a
guarantor. I am nearly 50 , I would like to keep the fmh , as my ex seems more concerned about his future welfare not his sons stability in the fmh. I want to be fair even though I was put in this awful situation, but having read through all the complications of the Mesher Trust which my solicitor has advised I am at a loss at to what to do .My ex income is £58k and he is 15yrs younger than me, i took a risk putting him on my mortgage from my first marriage as I believed he was genuine and trustworthy and now I am back in the same situation again. My income is only £9k and is then made up of tax and maintenance payments, altho exact amounts have not been agreed as we are still not divorced. Our son is happy and secure in FMH and i do not want to put him under the stress of the house sale and move as did my first husband and as a consequence my older sons have never recovered from. Please advise many thanks
Dear Toni
As I read your comment I see you have retained a solicitor for whose advice you are presumably paying. Your case is interesting from the facts you mention because it involves consideration of a number of factors :- whether non matrimonial assets can be excluded, assessment of your respective needs, obligations responsibilities given you have the care of a young child, your ages, your respective future income capacity etc to mention a few.
I can see exactly why you are concerned and would suggest if you aren’t happy your solicitor is sufficiently expert and up to the job, get one who is.
Alternatively tell your solicitor you would like a conference with Counsel to discuss the options. You may be pleasantly surprised.
Im sorry I can’t advise you what to do as my advise is only ever general:- I don’t know enough to give more specific advise.
You only get one go at this, make sure you are happy with what is being done for you.
Regards
Marilyn
Hello Marilyn
Your comments are greatly appreciated and I will indeed arrange for Counsel although I do not know exactly what this means, this has not been advised or offered to me as yet. I am under a great deal of stress and I have recently lost my father which has compounded all rational thought, as a result I do need to make the right decision for my sons and ultimately myself.
Kind Regards
Toni
Toni
Dear Toni
I think from what you write you have a lot going for you but you need to talk it through with someone who unlike me has all the facts and can advise you about how the law will impact on your case. Do your homework. Make sure your solicitor instructs Counsel (barrister) who is a very good advocate in court and very good at ancillary relief (finances)
Together they should be your (formidable) team in whom you have confidence and that’s what you will be paying for!
Regards
Marilyn
Dear Marilyn
Thank you very much again. It appears my solicitor is trying to make me research ways of getting a mortgage in my own right from an independent advisor. I will advise him today to instruct Counsel and will await his response as all the letters are becoming expensive!.
kind regards , Toni
Mesher Orders. Just a word of warning to those who have a Mesher Order and you don’t live in the house. If the house is worth about the average house price (or less) then you may well find that if you apply for legal aid, for any other matter apart from the house, you’ll probably find that you won’t be entitled to legal aid as the full value of the house less mortgage and £100K exemption means that you are over the capital limit – even if you’re claiming and receiving benefits. You may not have lived in the house for a decade and be a decade away from getting your share but it’s yours now, for the purposes of getting legal aid! Grossly unfair as the legislation (Statutory Instrument) seems to have made before Mesher orders existed and the body calculating Legal Aid can only work to the regulations!
Hi Marilyn
I am approaching a final hearing and would appreciate your thoughts. I am aged 49 and my ex wife is aged 41. We have two children, aged 11 and 14 who reside with their mother in the FMH. This is mortgage free and has been valued at £300k.
We also have a second property which is currently tenanted and which only has equity of £63k. I intend to move into this as soon as the financial proceedings are at an end, as this would allow for staying contact for my children but the mortgage is more than 4 times my annual salary. The monthly mortgage repayments also equate to 40% of my take home pay and the mortgage term expires upon my 67th birthday.
I earn Just over £1900.00 per month and pay Child Support maintenance at an additional 20% of my monthly net pay. My ex wife is currently not working although she is looking for employment. Clearly I will struggle to repay my mortgage unless I am at some stage in the future able to recover some of the equity in the FMH via a charge back or a mesher type order.
I do have a pension with a CETV value of £215K and my ex wife has a pension with CETV value of £95K. She is proposing that the FMH is transferred to her, with no charge back, with the second property transferred to myself and with each side retaining their respective pensions. However this would give her equity from the properties of £300k with my only receiving £63K – an asset split of 83% to 17% in her favour. I am further concerned that although I do have a pension of greater value than hers this is in effect an illiquid asset which I will not receive until I am 65 in any case.
My ex wife is now further suggesting that I should buy a smaller property but I will find it difficult to rehouse myself on £63K and will also find it difficult to obtain a new mortgage given my age. I am further concerned that if I am only able to rehouse myself in a one bedroom flat this will prevent my children from ever having staying contact with me.
I have now proposed that the matrimonial assets, excluding Pensions, are split 55% to 45% in her favour and that this achieved through a chargeback or mesher type order on the FMH to be realised once my children finish their secondary education. I have further proposed a pension sharing order split of 60% to 40% in my favour.
I would be grateful for your thoughts on my proposal and whether the existence of my illiquid pension could affect the Judge’s decision.
Dear John
A few thoughts which occur to me for discussion with your lawyers if you haven’t already:-
1.Whilst I can see you are thinking in terms of a mathematical split, I think the problem you have, which you don’t address in your question, is the glaring disparity between you both, in that you have earned income and she does not. Hence she appears to be seeking more of the available capital as compensation presumably on the basis of a clean break? But how is she going to manage? Its all very well asking for more capital but where is her income apart from child support going to come from?
2.I can understand the attraction of the sort of split you are proposing;- although I query whether a court would effect that type of split, unless there was also maintenance payable to her or she has a genuinely good income capacity and is able to maintain herself. If so and it is unrealistic for her to be rehoused for less than £300k, then I agree you need to think about a Mesher order going forward but that is of course subject to advise from your retained lawyers.
3.Getting a clean break if that is what is being offered to you, is something that could prove of great value to you in the future. I receive many queries from payers of maintenance who are required to pay for joint lives and never see an end to it. So don’t disregard the benefit of a clean break.
4. If she is seeking a clean break and all the equity in the house, is there someone else she is intending to live with or marry? She must say so if that’s the case. That’s the risk however you take in agreeing to this type of deal. She would be free to do with her capital what she will.
As always, these are just my initial thoughts intended as a general guide, they certainly don’t constitute personal legal advice and you must only take legal advice upon which you rely, from your own retained lawyers.
Regards
Marilyn
Hi Marilyn
I wondered how a Mesher order would work in my circumstances.
My wife and I were together for 14 years, married for 6 before separating 2 years ago. We have 4 children aged 12 to 3 who she home educates.
She is in receipt of benefits totalling in excess of £2,800 per month (including £750 child maintenance from me) which is more than my salary.
She is seeking a Mesher Order against the FMH as there is no equity. It is an interest only mortgage and is currently being paid predominently by Income Support. I have reluctantly started paying £200 per month as she failed to top up the amount income support were paying and it fell into arrears. She has also started paying £40 per month to stop it going further into arrears. However my £200 is increasing my debts as I cannot afford it, and actually wished the house to be sold, she also claims she cannot afford to pay anymore as she is “stuggling” to make ends meet (she doesn’t live in an affluent area).
My question is, what happens if she does get awarded a Mesher order.
1) Will she be responsible for paying the mortgage in full
2) What if she misses payments and brings it into arrears, does the mortgage company come after me
3) If I am forced to give her Spousal maintenance, how would this affect her Income Support (she is not on universal credit yet).
If you can shed any light on this I would appreciate it.
hi
my mesher order is over due was time to be sorted last year when my son finished secondary education but have not pushed it on my sons request, I think she read it to say when he was 18 but it says when he leaves secondary education or 18 which ever earliest anyway he is 18 on 25 December 2013 she put house on sale nov 2012 but not pushing it I have a valuation I have struggled and been in social housing for 8 years it’s time but she isn’t pushing sale the house is and was forced by the court to be in her name only meaning she doesn’t have to sell she can get a second mortgage or borrow elsewhere not my problem I was told when the time due valuation less mortgage divided by two that’s what am owed hmmmmmmmmm well I work it out to be between 40- 50 grand where do go now what do I do next am on 13,000 a year and struggling to meet everything need my money soz but need advice can you help thanks xxx
Dear Marilyn
I wish I had discovered your blog 3 years ago when I agreed to a Mesher Order! I didn’t know what I had agreed to as I had to cancel my legal representation due to running out of money whilst my ex had a barrister.
In brief:
My ex and I moved house in 1997 increasing our mortgage by £50k. The following year I found he had been having an affair that pre dated us moving. I would never have agreed to such a joint financial commitment had I been aware of the affair. This was at the peak of the market and we did not benefit from the move financially as house prices fell.
At that time I was working part time, however I increased my hours to full time and pushed hard for promotion to try and buy him out. Unfortunately my ex would not wait for me to successfully attain a better paid job and applied to the court for a financial hearing.
My ex was deemed to have a need for housing in the future and an order was applied giving him a third of the equity when my youngest reaches the age of 19 in 5 years. The property was transferred into my sole name. I subsequently had to move as the mortgage of £150k was too high for me to maintain on my own and the subsequent rate change saw my monthly payments triple. I now live in a much less affluent area with a mortgage of £118k against a value of c£200k. I was obliged to take a loan of £10k to cover fees for moving, stamp duty etc as my ex refused to let me use any equity. His fees alone for my move were £1500 despite there being no change in terms from the original court order , it was simply a new property with him retaining the same rights as before. I am also paying a loan for £10k (I have now merged the two) from the purchase of the fmh as this loan was in my name.
I sobbed through the first hearing as I could not get anyone to understand that at the point he can force the sale, I will be 55 (he will be 48) and there will be insufficient equity for me to rehouse myself and I will be too old to take on an even bigger mortgage to buy him out.
At the time of the court hearing the mortgage was 50% repayment and 50% interest only. It is now fully repayment as lending guidelines have changed and I was not permitted to keep an interest only element.
To further add to my stress, my ex will not allow me to remortgage to another lender unless the lender puts in writing that they will not advance me any more money without his consent. This is all covered in the legal charge so other lenders have refused this request. When I try to remortgage due to my fixed rate coming to an end I face this situation and also have to pay for his legal advice which isn’t any different from that set down in the original court order.
My ex is still with the woman he left me for and they live in her 4 bedroom town house which she owns outright. However he has no rights over the property so is deemed to have a need. I would also add that he made no capital contribution to the fmh as I owned a property when I met him which went onto to fund future property purchases. He also does not contribute to the mortgage, repairs etc on my home although he does pay maintenance for the children until the age of 18.
It does not seem right that he will benefit from any capital growth without making any financial contribution to the home. If I lived in a rented property his maintenance obligation for the children would be the same.
I am worried sick that at the age of 55 I will in effect be unable to adequately house myself (and my children as my daughter will only be 19 and at university or college). This is despite pushing myself to the limit in terms of work to try and keep a roof over our heads and provide for the future. A further complication is that he is refusing to continue maintenance for my son next year when he goes to university so I will have to take in a lodger and my son sleep on the sofa when home.
I can’t afford legal advice but I just don’t know where to turn. My ex is uncompromising and has told me that if I go back to court he may be awarded more as I have an equal if not better job than him.
Dear Claire
This is the nightmare outcome of a Mesher order. If you e mail me the order I will see if I can suggest anything but you seem to want to set aside an order you agreed that’s three years old. That’s not easy to put it mildly.
Regards
Marilyn
When I practised family I was always (privately) unsympathetic to clients (usually, I have to say, female) who had a Mesher which was about to run out and now wanted to get out of it. You can’t even get a Mesher without the approval of the court and once you have it, that should be that – if things don’t turn out as well as you expected, that’s JTB.
When agreeing a Mesher for the non-resident, usually the ex-husband, the following terms are important:
1. His share must be x% of what the equity would be if the wife were bang up-to-date with the mortgage – if it is not that must be her loss.
2. She should give the mortgagee an irrevocable instruction to inform the ex-husband – at HIS address – if she fails to make a payment.
3. Three failures to pay on time – or two in successive months – should be like re-marriage: they should trigger a sale.
If the ex-wife genuinely intends to play honestly she won’t object – if she objects she does not intend to play honestly.
Marilyn, thank you, I will forward the document to you.
Andrew, your comments are unhelpful. I feel suicidal over this. There was insufficient funds for me to continue with legal representation. I did not want it ask for a Mesher Order but there was no option. My ex told me he would rather have nothing than me get anything, hence his refusal to have mediation and instructing a barrister.
I have worked since I was 16 years old, currently 50 plus hours per week plus a return journey of nearly 60 miles per day. I bring up the children alone as my ex husband has no day to day involvement or interest. He talks about the house I live in as his investment, yet he dies not pay the mortgage or maintain it. Every family issue is mine alone to deal with.
I am not a greedy avaricious ex but in a nightmare situation that I can’t get resolve.
Claire: the whole point of any clean break order, including a deferred clean break, is that neither party has to worry about how the other is doing; their financial relations are laid down by the order. If you won the lottery you would not want your ex-demanding that the order be changed – even if he had fallen on the hardest of hard times. Clean break works because it works – if either party is allowed to change his or her mind later so much for clean breaks and consent orders.
It is indeed passing strange that two adults cannot settle their differences by consent without going to a judge for permission as they can in all other litigation but that is another and wider question.
Andrew, I went to court against my will as my ex husband refused to discuss finances with me. He didn’t bother going to court about parental rights, only our modest fmh This is not a clean break for me in any way and there is not one night that I don’t wake up worrying. I don’t want anything extra from him. I just want to keep my home which has a mortgage until I’m 70. How am I supposed to finance it?
Claire: the order is there and you agreed to it.
You are an adult and must expect and be expected to stand by your word. This is litigation, not social life, it is serious business and you cannot change your mind later as if it was an invitation to a party.
I repeat that you would not agree to an early sale and more equity for him if he fell on hard times – and you should not expect him to be nice about it either.
You need to accept that the sale is going to happen and prepare accordingly.
In fact re-reading your last post you DO want something extra from him, don’t you? You want to refuse him his share when your youngest turns 19. That is a very considerable “extra”!
Dear Andrew and Claire
This is all getting pretty harsh and I can see where you are both coming from. Send me the order Claire, let me read it.
Regards
Marilyn
Thank you Marilyn, I’m at work so in a position to forward it to you today.
I agree this is very petty. However, I think it appalling that Andrew thinks it appropriate for him to trivialise a major life event for me in this way. I didn’t ask my ex husband to have an affair, lie to me, agree to increase our mortgage by £50k to a level that could only be afforded by a two income household. He contributed no capital so morally does not have a ‘share’ although I understand that he does legally.
I did not want the Mersher Order, could not afford legal representation and was told by the judge that he could potentially be awarded 50% if I did not agree. We are talking about a 3 bedroom semi in a fairly deprived area not a substantial family home that I could sell and subsequently use the proceeds to fund another home.
I suggest that Andrew refrains from unnecessary and spiteful remarks about social life and parties. I don’t have a social life as I am the sole carer for my children. Meanwhile my ex husband is free to ski , holiday in the Caribbean etc with his girlfriend. I do go away but always take my children with me. They are and will continue to be my priority.
I apologise for the length of this message but am shocked by the vindictive tone from someone who has no knowledge of me or my personal situation.
[…] the last few days there has been a sharp exchange of opinion on the blog between readers, about the impact of Mesher orders. The Mesher order has been a popular […]
Claire,
you use a lot of adjectives against Andrew which are unreasonable and just wrong – purely on the grounds that you disagree with him and don’t like what he is saying.
All he is saying is that if two parties sign a binding agreement it is unrealistic for one of the parties to try to get out of it at a later date – regardless of the perceived fairness at a later date of the agreement that was voluntarily entered into.
Exactly, Luke:
Claire: I intended no discourtesy, I assure you of that. My point is and remains that agreeing to an order in litigation (matrimonial or any other) is not like agreeing to meet somebody socially and then deciding that you can’t make it. Once the order is made on the strength of the consent – that’s it.
Luke, the point to this is that things are never as black and white as they seem. Real people, real life. My ex and I should never have gone to court. It hurts to this day that he is more concerned about a home he contributed no capital to than he is his own children who he barely sees.
I work damned hard and raise our children completely alone. I entered into a financial agreement by increasing the mortgage on our home which I wouldn’t have done if I’d known about his affair. Morality, sadly, doesn’t figure and I’m paying a very heavy price.
Claire, I understand that it’s emotionally raw for you and that you feel very hard done by, that may be the case, but Andrew was commenting on Mesher Orders – and they ARE black and white by definition.
If people can go back on them and decide they don’t like certain bits then they don’t have any value at all.
By the way, your main complaint seems to be that you owned the house BEFORE the marriage and he put nothing into it, so he should get nothing from it. If the situation is as you describe then I fully agree with you – but the vast majority of married women wouldn’t – that’s why Family Court is as it is.
Andrew, thank you for your reply.
I consented to the Order whilst under severe stress and with no legal advice. Stupid I know but I ran out of money and met privately with my ex husband to agree terms. A week before the second hearing my temporary full time post was withdrawn and I had to revert back to my part time role. I had no room to manoeuvre and my ex husband went back on his word and requested a third equity. I was told by his barrister outside the court room that he was going for broke and a third hearing if I wouldn’t agree. I quite simply couldn’t take any more and signed but I was in no mental state to make that decision. I now realise that emotional abuse is as damaging as physical abuse but that doesn’t help me legally.
Dear All
What concerns me most about this particular case is that there are no provisions that a solicitor/barrister would have insisted went into the agreement in the order on behalf of Claire. There is no agreement to share outgoings pending sale at all, and a complete clean break.
Had a solicitor/barrister been present for Claire I am pretty sure her deal would have been better and she would not now be facing financial meltdown.
This is one example of the withdrawal of a legal aid system for all but the tiniest minority in our society. There was clear inequality of arms:- an emotional terrified woman ignorant of the law on one side and two competent lawyers ranged against her on the other.
It’s an appalling indictment of our “caring” society and the right of everyone of us to unfettered fair access to our courts.
Regards
Marilyn
Thank you, Marilyn. I just don’t know what to do. This consumes me. My ex husband’s barrister came and spoke to me and the female friend who’d accompanied me and made it really clear that if I didn’t accept I could lose more. At that moment I felt I had no choice but sign.
I think the problem is that we have an adversarial system and it is an appalling indictment of that.
We’ve never had unfettered fair access to our courts because it’s unaffordable – that’s why the wealthier generally and the people on Legal Aid against the people without get the best deals in our system.
My wife and I are in the process of separating. When we bought our house 8 years ago, I paid cash for 58% of it. We both signed a Trust Deed (drawn up by our solicitors) saying I would be entitled to 58% of the gross sale value and after the mortage & other costs have been paid, the equity would be equally split. We got married 7 years ago. Does this Trust Deed still hold good? I have parental responsibility for (but havent adoped) her 2 children and we have a 5 year old daughter. Im scared that she will be allowed to stay in the house and I’ll be reduced to sleeping on sofas.
My solicitor told me to stay in the house when my wife walked out. She then issued a court order to get me thrown out and it cost me over £2K to get her (unwarranted) allegations of violence dismissed. She only cited violence on advice of her solicitor so she could get legal aid.
Dear Justin
It might. The court will take all the circumstances into account and the reasonable needs of both parties. Have a look at my book Divorce and Splitting Up to get more idea.
Regards
Marilyn
Dear Marilyn
Did you have an opportunity to look at my Order.
Dear Claire
I have replied to you personally.
Regards
Marilyn
Justin wrote- “She then issued a court order to get me thrown out and it cost me over £2K to get her (unwarranted) allegations of violence dismissed. She only cited violence on advice of her solicitor so she could get legal aid.”
When is this going to stop??!!! Why do solicitors do this Marilyn??
Justin was fortunate that his wife’s allegations were dismissed… all too often a judge will err on the side of caution.
A litigant, usually the wife or female partner, who makes allegations of d.v. will get legal aid.
The husband or male partner who denies it will not.
Courts will very soon smell a rat – and be less receptive to allegations of d.v. Sometimes, alas, where they are true.
And at some point there will be a declaration that this blatantly unlevel playing field is not compatible with Article 6.
Marilyn
I’ve read your article and subsequent comments re Mesher Orders and your assertion that I was ‘stitched up’. Is there anything that I can do?
Thank you.
Dear Claire
Im very sorry, but a Mesher order can be varied only by agreement, and the fact you made what on hindsight appears now a bad deal is not the basis for setting it aside. You will read on this blog about other Mesher orders:-CB for example is a reader with queries who has agreed to contribute – there is no hard and fast rule. It is down to the deal done on the day. People think they don’t need lawyers, they think they can do it themselves, but law takes years to learn and years of experience in practice. Everyone should be entitled to access to the law and legal aid in some measure to help them, as it was when I first qualified.
I am so frustrated with so many people writing to the blog in desperation, because of lack of personal legal advice.
I am truly sorry I can’t help you.
Regards
Marilyn
Dear Marilyn, I divorced in 2004 and the property adjustment order to transfer the FMH to my sole name with the legal charge. One of the trigger events is youngest child completing full time education to 1st degree. My youngest child started university in September. 6 months ago my ex-husband filed the case to sell the FMH using “Further order of the court”. And he lost the case. He is appealing against the decision of the court, using section 29(1) of the matrimonial causes act 1973 age limit of child is 18 for the property adjustment order. My ex thinks the judge had abused his power to make an order to 1st degree. His lawyer says there is no justification for it. But I noticed section 29(3) (b) states special circumstance. Do you think the judge used section 29(3) (b) to order to 1st degree? Please advise me. I don’t have my own lawyer.
Dear Marilyn
In 1997 I left my ex-partner (un-married) with my daughter who was then 1 year of age. Between 1997 and 2006 when I finally ran out of money, some 1/4 million £ I fought to have contact with my daughter against the back-lash of sexual abuse claims, etc. I continued to fight as a litigant in person and in 2007 the Courts finally realised that my child was being abused, but not by me, but by her mother. The child was then placed in my care. Unfortunately, I had to re-mortgage my home to pay the legal bills amongst other things. Then the CSA decided that this re-mortgage was in fact income. As of today’s date, I am looking at a Section 8 application in the High Court. If there was Legal Aid I would not be entitled to it because I dare have a job. However, the child’s mother is legally aided by the legal clout of the CSA. I am very much alone trying to protect my daughter from the onslaught of her own mother and the agency set up to benefit that child. As a point, the mother has not paid a penny and the Court has refused to make a contact order for the mother since 2007. Read into this as you wish, but I feel that the action of the CSA and her mother are at odds with the spirit, if not the legal meaning, of either the Children Act or the Child Support Act.
I want my daughter to finish her education and start her own life then if the CSA and her mother want our home they are welcome to it. But to make a child homeless and take her education away from her now seems to be abusive, oppressive and not the purpose that the Children Act and the Child Support Act were created.
it would be nice to be able to pay huge solicitors fees but we simply cannot afford them any longer. I refer to Article 6 of the Human Rights Act but it seems to me that it only comes in to play under criminal proceedings. I need help or should I say we need help but have limited means.
There must be a way to protect the family home against the mother and the Child Support Agency for the benefit of the child. Any pointers would be much appreciated.
Dear David
I’m afraid I don’t understand your question. If you can rephrase it by removal of all the irrelevant, tell me exactly what the application is, and what advice you are seeking in relation to what exactly, I may be able to comment.
Regards
Marilyn
[…] A Mesher Order: The partner no longer in the home may receive alternative assets or defer their receipt of assets tied up in the property until the property is sold at an agreed time in the future (usually when the youngest is 18 or the partner in the home remarries). […]
Dear Marilyn,
I need some help in relation to Mesher orders as a matter of some urgency. I understand that once a ‘trigger event’ for a mesher order has happened one party can seek for that money to be released either through the house being sold, or capital raised to buy that person out. However, is there a way to prevent a forced sale? for example, can an order be postponed on the grounds of mental health? or the ability to find suitable accommodation with what little remains from the sale of the house ? (eg. if little equity remained and a mortgage could not be aquired) What if the mother, for whom the mesher order was made to enable her to settle down e.g find a job etc… Has not been able to on the grounds of mental health or because of the consequences of domestic violence? And what if one of the children (18) is diagnosed with aspergers and any move would be detrimental? is there anything that can be done? Will the courts look at the other children who despite being adults are still dependant? I am aware that cuts in legal aid mean that there is now very little funding for legal help, and so I am at a loss at what to do.
Please point me in some direction so that I can try and find a positive in this situation.
Thanks
Emily
Dear Emily
The court cant effectively rewrite the order. It has power to give directions in relation to the sale.
Regards
Marilyn
Marilyn: I know you are not enthusiastic about Mesher, but sometimes it is the only game in town which offers some degree of justice to both parties.
Have you a precedent for a paragraph in a letter of advice to the client who is going to keep the house until the trigger event which makes clear that when that happens there will be a sale? And that subsequent misfortune will not prevent it?
It seems that some of our professional siblings have not. Or that their clients don’t really grasp it. Or don’t want to. Or want to ungrasp it when the order bites.
Dear Marylin,
I had to leave my ex 3 years ago due to domestic abuse and escalating violence, with my 2 kids and go to a Refuge. I spent the next 2 years fighting in court for custody of my kids. My ex refused to leave our FMH as he claimed the Mortgage protection plan( he was redundant!) would not pay out, if he left. (I did inquire and he could have done, if we moved in and he moved out, as we were family dependents) After long bitter wrangles of custody, I finally get a rented place, to then have all my benefits and Community care grant cancelled the week before xmas, 2 weeks after we move in! again I struggled ,and had financial and legal pressures, as my ex refused to accept he was abusive, and was hell bent on making me seem in court as the one that was causing domestic abuse. I cracked under the immense pressure, coupled with dealing with my kids becoming more brainwashed by him on their contact times. I ended up breaking down and landed in hospital. My Ex took total advantage of this,, and had the courts sign my kids over to him, claiming I was unfit to look after them. I spent the next full year jumping through every single medical hoop, and had a £17K psychiatric report forced on me.. and left to me to pay on my legal aid bill!( supposed to be 3 way, but latter he refused to pay it. turns out he wasnt legal aided then so oc he couldn’t pay!) I was left with still VERY limited contact with my children, who are being brainwashed all the time, my Ex still living in our marital home… and with our final hearing in june last year, he was told the kids were to stay with him.( the courts were made to think I was abusive and violent, even though I ended up in a refuge due his violence) He had my kids, my house, my health, my job, and managed to destroy my life. 20 years of a relationship, 15 year of marriage and 2 kids 11 and 13, and now the divorce is done… we are onto the financial agreement. I have been on esa since i had to flee form him… he has been unemployed pretty much all the time, bar a short spell in the middle, and then he had an accident and he lost his job again. he also is on benefits, and has clearly stated he will not go back to work, so he can get legal aid. he has threatened in the past to take my kids, and take everything form me… and now it seems it is about to happen.
I have to rent, as I would not be able to buy, as we have a joint mortgage and joint owner of the house, that he remains in , and has had the courts give him the kids.( he got the kids for the house,, and the house for the kids) he tried to present a forged letter in mediation that had a copied signature of mine when I was unmarried on a doc that made it seem I agreed a deposit that he got form family had a high interest rate,, which would add up to £21K on interest alone!( we have challenged this a fraudulent so far) he gets mortgage int relief.. and pays only a small fraction on our mortgage now… it has been in arrears for well over 2 full years… and now it has just reached the 4 months payments outstanding… the mortgage company can not continue as this is going for much longer, and i see the house being repossessed.
with a £210k poss sale value… and £106K left on the mortgage( £4000 of that is outstanding payments that he has not paid on the house he insists he should stay in) I see it being repossessed any week… and i do not accept an agreement that i never signed , and i may still take to police if he forces the issue.
so far, my sol has put forward an offer to get a clean break and sell the house, minus the initial loan (no interest as this was fraudulently claimed) and have the house split 50/50. this way I can move on without constantly worrying about the house being taken form any of us.
He has sent a counter proposal that sounds like he wants to do a Mesher order giving me only 40% at the end, minus the loan( not sure if this is with the disputed interest or not), and take my name off the mortgage.
the mortgage company have told me clearly he cant remove my name, as the mortgage is too far in arrears, and neither of us are working, so we are in the same boat.. liability wise. the mortgage arrears are getting worse not better.. and I am somewhat worried that IF i do agree to a Mesher… and he gets a judge to remove me form the mortgage… what will happen if the house gets repossessed in the meantime? I would be looking at least 7 years till my youngest is 18, and I personally do not see the mortgage staying as it is for even 2 months!
If he had funds to make good on the mortgage, he would have done so already. Who takes precedent on the proceeds when a Mesher is put into place? does it go Bank/ me/ my ex… or does it go… Bank… and me and ex get hardly anything… or me/bank// ex?
As much as I do not want my kids to be made homeless.. I see selling up now and divide the asset now.. before the house is taken form us, as the most logical solution… my ex seems to think if he gets an order… sticks his heard in the sand.. the bank will not notice.
Can a bank repossess a house if a Mesher is in force( does it stop them proceeding).. and if I do agree, can i place any restrictions that trigger the Mesher to be rolled up if my ex defaults on the mortgage payments in the future?
I rather not go to court, and still bash this out on the negotiation stage… but I suspect we may have to go to the Form E and court judge route.
My ex has already taken everything away form me till now… I do not want him to take even what little rights i have to the house i also paid into, and looked after. My kids have this high notion that my ex is going to buy me out.. if he is on benefits, he should not have access to those funds.. and again.. if he did.. he should be using that to pay the vast outstanding on the mortgage.
My faith in the justice system regarding Domestic abuse has been somewhat tarnished, as with my ex making a counter claim.. they seemed reluctant to believe either of us, or take all of my claims as they were. I would hope that a divorce judge will take a more pragmatic view. My situation is not usual.. as mt ex got my kids, so far living in my home, and claiming every benefit for them.. and I even have to pay CSA from my ESA. If my ex is so hell bent on staying in the house… he needs to man up and pay his dues,, as I have to with my rent( which I have totally up to date all the time)
due to the length of time he has been out of work, I doubt him getting another job that will pay the mortgage at all… and he can not afford it on his benefits either.
any advice would be helpful
Dear P
Marilyn has asked me to reply to your question. I am a solicitor at Stowe Family Law’s Hale office.
If you decide to agree a Mesher Order, you will not receive your agreed share until one of the ‘trigger’ factors takes place, one such factor is that the property is not sold until the youngest child attains 18 or finishes full time education. Other trigger factors for a Mesher Order can include sale of the property, which if repossessed will happen, in your circumstances if you go down this route I suggest repossession is included as a trigger factor, to avoid any ambiguity later on. The risk with repossession is that the mortgage company is in charge of the sale, there priority is covering the mortgage debt , and as a result repossessed properties are often sold at a reduced sale price. If there are any sale proceeds left after the repossession this is what would be divided between you and your ex as agreed in any agreed consent order, which you enter into.
I suggest you contact the mortgage company and ask if they can confirm in writing the position regarding mortgage arrears and repossession. This may assist negotiations. If the property is going to be repossessed, it makes sense to sell it before it gets to that stage. The mortgage company can repossess a property even if there is a Mesher Order in place.
If you and your ex cannot reach an agreement you have no option but to go to court for the Judge to determine how the matrimonial home should be dealt with. The Court must have regard to the factors set out at Section 25 of the Matrimonial Causes Act 1973 which are as follows:
• The parties income, earning capacity, property and other financial resources
• The parties’ needs, obligations and responsibilities
• The parties’ standard of living enjoyed during the marriage
• The parties’ contributions both financial and otherwise
• The parties’ income and employment prospects
• The length of the marriage and the ages of the parties
• Any health issues/disabilities
Even if court proceedings are issued both you and your husband can continue to negotiate alongside those court proceedings.
Kind regards
Kelly Parks
thank you for your response. this website had had more about mesher issues than any other! I am sure my Ex feels that by making it a mesher… the house can not be repossessed either… I am glad you have clarified that this is not the case, as this is where my research has also got me to this point.. but I wasn’t totally sure.
I know my situation is not the norm..( usually the wife ends up with the kids and house) and tbh… I feel that I have been through the mill to prove it should be the other way around for so long and my “charming” ex managed to charm everyone to believe him. DA in this country does not always fall in line with justice. 🙁
My Ex SHOULD be paying his dues… to keep his roof over his head, just as I have to… and with both of us on benefits… and my ex clearly stating to me he has no intention of going back to work at all, I do worry that he will force an issue that I have to pay his mortgage too.
Could it be stipulated in our mesher triggers that he needs to clear ALL of the arrears, and ensure payments are kept up to date at all times, and to trigger if the mortgage is defaulted by say 2 missed payments?
I am also concerned that if this mesher does go through it will still not be in time for my credit rating to be marked as defaulted, as they trigger is 4 months payments total outstanding,, and it is at that now.. I wait to see it to flag up “status 8” defaulted on the mortgage. everything else in my name is up to date… paid on time,,, and in the green… this is the only thing that is seriously trashing my credit score.
If he insists my name is removed by a judge( which I think i have read can be done by the judge) how will I be able to get updates if he defaults and send the property into repossession in the future… near or far? would I be also copied in on any defaults? the mortgage company to date have said THEY cant remove either of us… but if a judge can … where does that leave me in keeping tabs on it?
I do not see my Ex coming up with the readies to clear the missed payments or he would have done so by now… I also do not see him getting a job that is going to be able to pay the mortgage and all of his huge debts…. and clear outstanding in a the short term.
I so want to have a clean break…. as this affects our kids relationship too… as my ex refuses to tackle any difficulties I am having with them, till the finances are sorted. I know 7 years is not really that long… but I don’t see him staying afloat more than a few months at this stage.
I have barely enough benefits to keep my rented house going, and a bit of help form my parents each month. I budget every penny, and keep my head above water. I would not be able to afford to pay my ex( who despite what ended up being ruled in court… WAS an abuser)I do not want to be punished for escaping him, for another 7 years if I can help it.
as much as I do not want to make it an issue to sell the house.. making my ex have to move… I can not see this mesher order doing anything bar delaying the inevitable, and still not protecting my kids from being locked out from their home in the foreseeable future by balifs to enforce a repossession order. I have already had that delight with my ex in our past… with ccjs, and knocks on the door demanding payments for things that he defaulted on in the past. I do not see this being any different.. and more at stake. I am sure that the mortgage company are still sticking to the letter, to keep things ticking… but i can’t see him dropping his contribution to 1/3 of left over payment after MIR is paid on the mortgage… this has been like this for well over 2 years, and now we have stepped up from 3 missed( just under 4) to a full 4.4 missed and another due next month.. and no payment plan in place. they have already stated this latest drop to only about £200 form him direct, can not continue.. and they would be looking to see this resolved… or matter taken further.
in an ideal world…. with him working.. paying all the bills and mortgage as he should and bring it totally out of the red, and in the clear for 12 months.. that would be ideal…. but I do not see that ever happening.
the mortgage company have said that this situation on the missed payments is not sustainable, and they will have to see a resolution sooner rather than later… I see them loosing patience and pulling the plug any week.
This sounds like my situation. Despite my ex having a history of domestic violence and I have enough proof to be able to be eligible for legal aid, he has the house and two of the children This happened because of police and social services failure. I have to rent. I am now going for financial remedy and am worried that it will be pointless as it could possibly be another 8 years before the youngest child is out of education. I will have one child but they may be out of education by the time the matter is resolved, but they do have SEN and are unlikely to be independent for years if at all. I do not want to rent and I could get a mortgage at the moment if I had some equity from the property now, but in 8 years time I would be too old to get a mortgage. I can also foresee trouble trying to get my ex to sell as he has nothing to lose, he cannot buy me out. I would be very grateful for some advice please as I can’t think straight at the moment.
Hi Marilyn,
My query is on Capital Gains Tax with a Mesher order. The joint property is now on the market for £325,000 which was purchased in 1996 for £126,000 and mesher order in place in 1998 and where I lived and raised the children. My ex purchased a property in 2000 for £249,000 as his principle residence and then moved and purchased another property for £382,000 which is now worth approx £586,000 and is his principle residence. The mesher order states the jointly owned property is to be divided equally 50% each. How much capital gains tax is he liable for?
Kind regards
Jill
Really confused. Please help. My ex husband and I have agreed at mediation that the FMH (equity of £314k) will be transferred into my sole name and I will take over the mortgage (236k). My ex will get 40% of the equity when I sell following the usual trigger points. This has been written into a draft consent order which I am yet to sign. I have a mortgage agreed in principle. However, my mortgage advisor has said that that he is worried that the mortgage company will withdraw my offer when they see that my ex has a 40% deferred charge. So what would you advise? Will my ex still be liable for our joint mortgage even if the house is transferred into my sole name? Would I be forced to sell if my mortgage application in my sole name falls through?
Hi,
For the last 11 & a half years the property charge has worked very well in securing a home for my daughter with my Ex wife. I am in no rush to get my xx%, and happy my daughter has stayed at good schools from 3.5 to now 15 years.
However, with just 1 year until my daughters GCSEs my Ex has told me she’s selling and moving to a much worse neighborhood. I’m really disappointed as my Ex is doing this for equity release rather than concern for our daughter.
Saying all that, I’m assuming a Property Charge cannot be used to trap someone in a house. She’s my Ex so can do as she pleases.
Though my question to Marilyn is the Property Charge with the Land Registry states it secures my xx%, so a solicitor dealing with the sale on behalf of my Ex must pay to me that amount?
The Charge also talked about Independent Surveyors but she hasn’t done that…. Just interested what the selling Solicitor must do.
Regards
[…] It’s not often that a case gives its name to a type of court order, but Mesher is one of that select band, along with its ‘sister’ case Martin v Martin, which will be the subject of my next important cases post. Incidentally, Mesher and Martin orders were discussed here by Marilyn Stowe in this post. […]
Dear Marilyn
Please advise…
My husband left me and my two children a year and a half ago, we were living in a house I’d had brought tmporarily to be near his work in Birmingham. Our FMH was in Wiltshire and although we’d live in it for nearly 20 years it was still in my husbands name as he’d brought it when we met, and I paid most of the building works – my mistake not to get my name on the property. I do have a register on the property as my family home, as that is where we lived, married and had our children. Eight months after my husband moved out, leaving me on cancer treatment and with two young children. I sold the property in Birmingham, as I couldn’t afford the mortgage and billls on my own, and moved in with my sister and her husband, who help me with my children as I have been in hospital and now on second round of chemo. So I have cash assets from the sale of the second property, not enough to buy a home for me and my children so we are trapped in a damp annex. My husband’s solicitor is calling the second property (temporary Birmingham) our FMH and requesting bank statements and P60s from me. I get no maintance for the children from my husband as he claims I have the cash from the second property (this is ringfenced as much as possible to try and get a home). My solicitor advice was to get the original property in Wiltshire, our real FMH, sold and to buy a home for me and the chidlren under a Mescher order. You seem to be saying the opposite? So much opposing advice. Surely the interest of the children comes first? Can you please please help? Susan
I have a 2 year old and a 6 year old. my ex husband has just agreed to an occupancy order, which I understand only lasts for a year. if the house is sold, I will not be able to afford a property on my own, the children will have to move school and even in a years time, my financial situation will not really have changed. my question is, what is the possibility of the courts granting a mesher order? I can afford the current mortgage and bills and have read all the comments for and against these orders, but I really think that this is the only way I can keep things normal and regulated for my children.
Could you please help.
My friend is unable to cope with wht is happening and I didn’t know how best to help him.
He is getting a divorce from his wife after 5 years of marriage. I think they were togtehr in total for about 15 years and they have a 12 year old sone.
He works full time and his wife works 3 jobs totalling full time hours.
His wife made him move out of the family home and he went and still lives in a shared house of which he lives in a room. The only thing he has in his possession is a tv, games console, guitar, bedding and towels.
The family home is a very large 4 bed home with 3 bathrooms, large kitchen diner which had a rcent extension added.
The house is worth approx £220,000 with about £120,000 equity. At the time of the split they had over £10,000 in credit card debt with no savings.
He has recently been removed from the mortgage, but he pays the ful rate of CSA. Over the last 12 months he has paid the full mortgage costs.
He has been told by his solicitor that a Mesher order is inevitable and he has no option. He has no money or savings, he has borrowed money to enable him to pay for the mortage, but wants to b uy his own home so his son can spend more time with him.
Is the Mesher Order inevitable? Surely there has to be a level of reasonableness and is it reasonable that he lives in a bedroom of a shared house? He has no furniture no nothing.
He is becoming very depressed as his legal advice is there is no other option?
Please please help
Hello what can be done through the courts when trigger event has happened F.M.H is up for sale but is not selling.
Dear Zena
You can ask the court to give directions about the sale including (and there may be much more that occurs to you) the identity of the estate agents and a sale price which can be accepted, also who has possession of the property pending sale and who shows people round.
Regards
Marilyn
will a court award interest if charge on house is not paid by due date i.e. trigger event thanks
Dear Zena
It should run automatically under the order. Check it. Otherwise I think the answer is yes.
Regards
Marilyn
Hi thank you for reply it is just I can not find any information on any one going back to court after the trigger event has passed. How do you start the Process and what action can the court take thank you
I had a Mesher order made in 1990 in which I was to receive 25% of my house but my ex wife was allowed to transfer this to other properties, unfortunately she kept buying cheaper and cheaper houses and argued that I was only allowed 25% of those houses, After I left the house she threw away all my possesions which I had been allowed to leave for a month by the court. I took her to court over that and lost and had costs put against me, by the time my Mesher order came to fruition I had interest added to the costs, I pointed out that she was on legal aid but the district judge made the order that I would get nothing but could appeal, I had appealed in other cases previously and just had more costs so at this point just gave up and walked away, I lost contact with my children as well but that is another story of false accusations and having my children turned against me. However I now have a beautiful girl friend 20 years younger than me while my ex is a wizen old woman living on her own.
I am peitioning for divorce. My wife left the FMH with our children and took herself into rented accomodation I remain int the FMH alone. She told me we could get a divorce on the cheap If I didnt fight it and we would get 50:50 captal split (£400k+ joint equity)..She had it really well planned and sprang it on me a fortnight before she left with the kid. Her parents we over in England I thought on holiday, infact they were here as part of the master plan to move her out. They are from a very rich french family my wife is the sole inheritor to the estate.
I then to my absolute shock found out about the boyfriend the day after the separation. There had been a 3rd person in my marriage for the previous 18 months..I was totally unawares..
I took a solicitor and quicky filed for divorce on grounds of disertion and an inaprpriate relationship with a man..My costs are spiralling out of control.. we have voluntarily exchanged form e part123. I have found a house to buy dependent on a 50:50 split which she says she wont give me now because of the trouble i have caused she wants 70;:30.I have said I won’t allow the sale unless my purchase can go through as I will make myself vouluntarily homeless…I am stuck now…what should I do???? HELP please:)
I was divorced in 1991, as I had 2 young children aged under 5, I had a Mesher type order., based on my ex being single; he denied he had plans to marry.
I ex husband remarried in 1992.
He was ordered to pay maintenance of £1,100 a month, out of which I payed mortgage. He pleaded financial hardship, & said he couldn’t manage the extra £100/month. I was scared he would default on payments altogether as it was the recession, & he was in the building industry.I opted to live in family
home to live in until children reached 18/University. I payed the mortgage throughout, finally paid off in 2012.
His pension was not considered at the time of divorce, & I was in very unfamiliar teritory with what my rights/law etc.
I was only able to work casual as a basic staff nurse, when he had children. I lost out on NHS pension, until 1997, when after studying & eventually getting back on the bottom rung of career ladder
Him& his wife have had a comfortable lifestyle, earning in excess of 50k &70k respectively. I also believe both of them to have been in receipt of redundancy packages, as well as family inheritenhance.
My ex has now approached me for his 40% share of the family home; which I believe he plans to buy me out & redevelop the family home, as it is in a desirable location in north London.
I am now 69, ex husband 7 years younger.
I am not in a position to buy him out or to afford to buy a property myself.
I would be grateful for advice on what Action is available to me?
Agnes:
.
1. Pension sharing did not exist in 1991. It could not be considered.
2. His remarriage is probably irrelevant – but in any event it happened in 1992 – it’s far too late to raise it now.
3. If there are unpaid arrears of child maintenance you MAY be able to retain them – without interest.
4. If the Mesher order was properly drawn it will have dismissed all other claims, so his redundancy package and inheritance are his to keep.
5. His second wife’s redundancy, inheritance, and pay are not your concern in any case.
===
And now the Mesher order which was made – presumably by consent – has wound down, as you knew it would – in fact your ex has waited longer than he need have done. You had the house all these years – now it’s his turn.
So the real question is: what action do you expect? You want to keep him out of his money. Why should the law support you in acting against an order to which you agreed almost 25 years ago?
==
I know this sounds harsh, but it’s life. You can’t always have your own way. If you can’t buy him out at valuation there will have to be a sale.
Advice please…
Imean going through a divorce the nici has been pronounced. I have a family home that the economy and two children live in. It’s valued around the 30th mark. I’ve asked for 20k of it and desperately want out of mortgage so I can get another with my current partner. What could I do to get off the mortgage early should ex not play ball.. confused re meshers law
Hi, I have been divorced since 2006 from my first wife and have a mesher order in place with the usual triggers placed in it, My youngest child is nearly 18 and is leaving full time education and moving onto University. I have had zero contact with my ex wife for many years as she has heavily influenced my children into not talking to me, It was a 70-30 split. my question is: How would you recommened dealing with the issue of getting my 30% of the FMH when I have no contact with my ex wife. I am prepared to go to a solicitor but I am not sure if there is an easier route, Could she contest the original mesher order or try to pospone it?
There is 300k equity in the property and I have struggled with debt for years but feel I should receive something as I had originally walked away from the divorce homeless and pennyless. I have always paid the child maintenance through the CSA and feel that I finally want some closure on this.
Provided the Mesher is competently drawn and refers to secondary (not tertiary) education, your time is coming. Write to her in a matter of fact tone to point out that this summer the arrangement will unwind and asking what her plans are for the sale – whom she proposes as solicitor and which estate agent.
If she writes back with sensible arrangements well and good. If she says she does not want a sale or ignores you then you will have to make an application to the court which divorced you – through solicitors or in person, as you choose.
The fact if it is a fact that sale will cause hardship to her is neither here nor there. That of course is why our hostess here is not keen on Mesher orders; but when they are made they stay made and you should persist. You are entitled to it.
I own 70% of my property and my ex husband owns 30% of it. I live my two grown up daughters.
I have a mesher order until my youngest child leaves university.
What happens to my property if I die or if my ex husband dies? Would it have to be sold or can it be transferred to my daughters?
I imagine you mean you live WITH your two grown-up daughters and that the younger is now the university student and aged 18 or more.
If that is right and the Mesher is in the usual form, and as Marilyn would remind me we don’t know that:
1. If your ex dies before your youngest leaves university that strictly speaking makes no difference. His executors or administrators will have the same right to call for a sale when s/he graduates as he would have done. However: who would be his beneficiaries? if the only children he has are those who are also yours – and he has not made a will – and has not remarried – then his beneficiaries would be your children and they could decide against a sale. If there is anybody else interested in his estate then the Mesher will bite – as you no doubt expected when it was made – and you will have to sell.
2. If you die the Mesher will bite at once and he will be entitled to a sale.
You and your children need to assume that once they are all clear of university the house will be sold and there will not be much wiggle room even as to timing. Marilyn will probably say that that is why Mesher orders are a Bad Thing and perhaps she is right – but if made they have to be carried out, and sometimes they are the only game in town which does a measure of justice to both parties.
Hi, I am wanting to pay the charge back to my ex husband after 2 yrs of divorce. He is entitled to 30% of the equity plus expenses to be paid. I am remortgaging to pay him off and putting my new partner on the mortgage. Problem….. My ex thinks he knows the value of the house better than the estate agents… House was valued at court at 275k. Nothing is said in the charge back about the value of the property and the sum that will be owing if I do this without selling the property. Which figure should I be basing the charge back on?! Confused…..
Sarah
You can guarantee that any valuations obtained on the instructions of the court during divorce/separation will be greatly undervalued. The property will be valued to achieve a quick sale and an easy bit of commission for the estate agent. Clearly if you are in a position to buy your ex out based on a quick sale valuation it’s in your interests but don’t expect your ex to be happy about the fact that you and your current partner are profiting out of his misfortune.
A valuation from two years ago is worthless. You and he will have to get it valued again, on an open-market, willing-vendor-and-willing-purchaser basis. Since it’s you that wants to redeem him you will have to pay the he fee up front but if you go ahead and buy him out you are entitled to retain 30% of the fee; just as would happen on a sale.
Hi
i have a mesher order in place. I live in fmh with 14yr old daughter. I pay everything -joint mortgage,secured loan & other debts from marriage.
eh pays maintenance.
since splitting in 2008 he has constantly harrassed us & broken into home twice.
my daughter & i suffer with stress/anxiety and both on medication.
due to all the debts i was left in i took in a lodger. A family friend.
exh keeps accusing me of cohabiting-even broke into home and placed lodgers clothes in my bedroom-took photos and now using as evidence to prove i have breached mesher order & wants to force sale of fmh.
lodger has lived here since before mesher order set in 2012.
i have to phone police on a monthly basis as eh is now harrassing our daughter.
i do not have funds for solicitor and am now on diazapam as imnrepresenting myself in coourt next wk.
1-what if judge believes him? And forces sale of house -does that mean i lose the hearing and will end up paying his costs?
2-been told it will go to 2nd hearing-my nerves couldnt take it. Been told i would then need solicitor but would cost £1200-which i dont have.
3-he reckons he has witnesses saying me & lodger have been on hols together. I dont get on with one of my neighbours and believe they are the witness
4-lodger is my parents friend-a good friend to me but not romantically involved. But eh has seen photos of me &lodger taken at parents anniversary in my home and using this as evidence too.
Would i be better off agreeing to sell fmh in court to end all the harrassing hes given us but wouldvthat mean ive lost hearing and still pay costs
Ex has won no matter what but theres not enough equity to buy another home. I have bad credit so wont get amortgage plus im on low income
but will have too much savings to be housed by council
im at my wits end here-eh has made our lives hell but will see us out in the street
Tracy: If I was your solicitor this is what I would say:
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Perhaps Mesher was not the right order for you – I am sure Marilyn would say so! – but right or wrong, it was made.
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Your daughter is 14 and n four years (if the order specifies the end of school education) or seven (if it specifies the end of tertiary education) the order will unwind and you will have to go.
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There is a finite risk – obviously without knowing more about the evidence I cannot guess how much – that the judge will believe him and order an immediate sale. And yes, in that case you might end up paying his costs of the application out of your share of the equity. [If I were HIS solicitor I would have written to you stressing the strength of my evidence and making it clear that I would ask for my costs.]
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The time before the day comes when you have to sell is not long compared with a lifetime. Perhaps you would do best to suggest a deal by which (1) there is no sale now (2) but there is a sale after your daughter does her GCSEs (3) in the meantime there are to be no further applications for sale unless you remarry or die and (4) no order for costs of this application.
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Of course if you and he agreed that and then two years from now you fail to cooperate in the sale – you will end up paying costs.
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I know that that would be bitter advice to follow, but you should consider carefully whether it would be best. If you win next week it is only staving off the inevitable for a few short years.
Hi,
I completely agree with your blog, my divorce was finalised 13 years ago I divorced him on the grounds of domestic violence towards me and our two children and he was granted only supervised visits with them because of it but also he was given a charge of 25% of the equity in the house which is in my soul name, I didn’t want this but I was forced into excepting it being told it was in my best interest etc etc plus I paid all his debts off and he got both endowment policies meaning over all I had to take extra out on my new mortgage to cover all the costs which over 3 years ran to just over 35k…
Now 13 years later he’s now wanting his 25% but I have absolutely no way of giving him this without selling my home which has huge problems for me as I’m now disabled and I’m unable to work, I have a new partner of 6 years and we have a 4 year old and his 15 year old living with us he’s also had to give up work to look after me and our children but has gone self employed so he can earn a little bit but also be flexible because of mine and the little ones needs…
I’m absolutely worried sick, we can’t get another mortgage because we don’t earn anywhere near enough, there is no where about that would be suitable for my disabilities and the two children to rent and the council won’t help us because I will have far too much money in my share of the equity so in effect selling would be making us all homeless or split our family up…
I wish I had stuck to my guns and not gone with the charge but I was far to frightened of him and what would happen if I didn’t especially having two young children as well, if I had fought him over it then god knows how long he would of dragged things out but now it feels like he’s always had control over my life even no and it’s not like he really needs it as he has his own house with his wife and his parents will if they haven’t done already will leave him loads of money from their house…
Any advice would be greatly appreciated best wishes from one very frightening person…
Another Mesher which perhaps should not have been made but was made, 13 years ago, and you knew when it would unwind from Day One.
Marilyn has often reminded us that whose name is on the deeds is not of much importance, and that applies here; the house was part of the pool of assets and you have told us what the consent order said. And if it allowed for earlier sale by further order of the court – which is usual – you are lucky not to have faced an application for early sale considering that the house is being used by your partner and your child by him and his child – three people to whom you ex is under no obligation whatsoever. Unless of course you have (quite wrongly) been keeping him in the dark about it!
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And as you probably realise all you say about your difficulties and his means is neither here nor there. Earlier this year Marilyn quoted an American judge who said: “Everybody’s got a sob story when something doesn’t go right after they agree to it.” which might be harsh but is unfortunately true.
Please please would you advise. Going through divorce and got FDR next month. (separated in 2011) my concerns are; ex is requesting 10k settlement and my solicitor is advising to do this even if it means for me to pay when the house is sold (grandaughter reaching 18 yrs) However, I am very concerned. Basically FMH valued 11000k There is £35k owing to mortgage and 37000 debts. My ex owes 9k through CMS and further 5k arrears from 2007, however, he refuses to pay and CSA have not taken any action. Throughout marriage of 10 years. I paid mortgage and all the bills. I have had a debt management plan in place for past 3 years. We have a son age 18 years in full time education. I have residency of grandaughter age 13 years. Ex has requested 10k pay off and solictor advises this. As I am not able to raise any monies remortgage, Solictors advised to agree settlement of paying ex 10k when child reaches 18 years. However, this concerns me due to the fact I will be 55 unable to get mortgage. I will have to rent, Furthermore based on 50/50 taking into account debts, child maintenance there is around £3,000 each. Although solicitor advises courts will not take into account child maintenance arrears and I would have to pursue this through county court. I am really concerned. I have been off work with depression for several months. I only earn £2000 month. My ex earns good money self employed. Is 5 years younger. Has no debts (am paying them) and no housing needs. Throughout the marriage I have financially supported him due to his drug alcohol abuse. I inherited 20k of which went into the property. Surely all these factors should be considered . (oh ex form E states he is not working. However, I can prove company he sub contracts for. Please advise. I do not know what to do and cannot understand why I am being advised to consider settlement of 10k when there is clearly no money in the pot. This appears to be a short term fix and I am being set up to fail homeless and penniless age 55,
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Martins agreement made in 1983 between my Dad and ex-wife. Dad just died, leaving his half to me and my step brother and sister. Ex is still living in the house and her half will go to my step brother and sister. Been told to register an interest in the property, but if she stays, I can’t get my inheritance, if she sells, can I get it?
If the order is in the usual form you get your half on sale. And yes, register your rights.
Hello there, I wonder if you could offer some advice? I am facing divorce from my husband of 20 years we are in a situation of negative equity (and in about 40 – 50K worth of debt – part of that is a £25K secured home loan on top of the mortgage).
I have two children the youngest is 6. Would you advise me to apply for a Mesher Order? I am in the early stages of starting my own business so would be hoping that by the time the house comes up for sale (in 11 years) I may be able to purchase it myself (it’s a very small house). I would like to keep the stability for my children.
Many Thanks
Hello,
Hope someone might be able to help me with my question.
I have applied for my Financial Consent Order where we have both agreed no splitting of any assets including my property that I own in my sole name but it was our marital home during our marriage.
The property has 0 equity. My ex has purchased his property last year and has 0 equity also.
The judge has queried the order for a reason saying : What is to become of FMH and the mortgage and the order is silent, please clarify and amend. What I should reply in regards to this? Should I say that I am planning to live in the property with our child? And should I amend it in the consent order?
What if later on in few years I would like to move and sell the property? Anyone that could help would be greatly appreciated. Thanks
Thank you for your query. I have passed this on to our Client Care team who may be able to help. Kind regards