Or to give it its full name: Mesher v Mesher and Hall. Unfortunately, the note of the judgment in this case doesn’t appear to be freely available on the internet, so I can’t give a link.
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.
Mesher was actually decided in 1973, although a note of the judgment was not published until 1980. The case concerned what was to happen to the former matrimonial home after the parties divorced, and the solution that the court found became the template for literally thousands of cases in the years to follow.
The former matrimonial home was owned jointly by the parties. It was subject to a mortgage, but there was a substantial equity. Mr Mesher intended to remarry and had already purchased a new property. Mrs Mesher also intended to remarry, but she wanted to remain in the former matrimonial home, with the nine year old child of the family.
The case went to the Court of Appeal. The problem that had to be addressed was that neither of the two obvious solutions (sale of the property or transfer to the wife) seemed to result in a fair outcome. If the property was sold the wife would be left with a large sum of capital but not a home, and if the property was transferred to the wife that would obviously deny the husband his half share.
The answer that the court came up with was to order that the property be held on trust for the parties in equal shares, on the basis that it would be sold once the child reached the age of seventeen. The wife would be entitled to live there rent-free until the sale took place, and the mortgage repayments would be paid equally by the parties. Obviously, when the sale took place the net proceeds, after deduction of the mortgage and costs of sale, would be divided equally, although the court could have specified other proportions.
It should also be noted that the court could specify that the sale should not take place until the child reaches another age (eighteen was common), or until they finish full-time education, if that was later. The point was that the property was not supposed to be sold all the while there was a dependent child requiring it as their home.
As will be seen, the original ‘Mesher order’ kept the property in the joint ownership of the parties. An alternative is to transfer the property to the party that remains in it, and give the other party a charge over the property for their share, such charge not to be enforceable during the dependence of the children. These ‘deferred charge’ orders have also been referred to as ‘Mesher orders’, the term being used to describe any order under which one of the parties is kept out of their share of the former matrimonial home until a specified event relating to the children occurs.
As I indicated above, Mesher orders were very common in the years after the case was decided. However, it was soon realised that they were not without their problems. In particular, they stored up trouble for the future. Children don’t vacate the property as soon as they reach a certain age or cease education, and what is to happen to the party that is living there after it’s sold? Will they receive enough from the proceeds to be able to afford to re-house themselves? Will they then be in a position to raise a mortgage?
For these and other reasons Mesher orders have rather fallen out of favour, although they do still have their place in appropriate cases, for example where the family assets are sufficient to provide both parties with a roof over their heads if the former matrimonial home is sold, but the interests of the children require that they remain there.