In my last important family law cases post I discussed the case of Mesher v Mesher. As I explained then, that case gave its name to the ‘Mesher order’, under which the former matrimonial home after divorce was not to be sold all the while there was a dependent child requiring it as their home. Today I turn to the ‘sister’ case of Mesher, Martin v Martin, which was decided in 1977, and which gave rise to a similar type of order, unsurprisingly called a ‘Martin order’.
In Martin there were no children of the marriage. The parties had married in 1957 and the husband had left the matrimonial home in 1972, to go to live with his new partner. The parties were subsequently divorced, and the court had to resolve the issue of what was to happen to the former matrimonial home, in which the wife was still residing.
At first instance the court ordered that the property be sold and that the net proceeds be divided equally, on the basis that the husband would discharge the small mortgage. That order was reversed on appeal, and substituted with an order whereby the property would be held upon trust for the wife during her life or until her remarriage or such earlier date as she should cease to live there. In other words, the wife could remain living in the property as long as she wished, and it would not be sold until she left, died or remarried. When it was sold, the net proceeds would be divided equally.
The husband appealed against that order. The Court of Appeal set out the essential facts:
- At the time of the appeal the husband was 43 and the wife was 46.
- The property was worth £11,000, with about £1000 outstanding on the mortgage. It therefore had an equity of about £10,000.
- Neither party had any other significant assets.
- It was agreed that the equity in the property belonged to the parties equally, but the court had found that the wife’s half share was not enough for her to purchase suitable alternative accommodation.
- Both parties were employed, with the husband earning £30 a week and the wife earning £23 a week.
- The husband lived in a council property with his new partner, who he intended to marry. They had had a child together, and she had two children from a previous marriage. The husband had told the court that he saw no difficulty in transferring the tenancy of the council property into the joint names of him and his partner, and therefore his accommodation was secure.
Lord Justice Stamp gave the leading judgment. He pointed out that the primary concern of the court in cases such as this was that each of the parties should, if possible, have a roof over their head. Here, the husband had a secure roof over his head and no immediate need for capital. The wife, on the other hand, needed either the matrimonial home in which she was living or some alternative accommodation.
It was suggested that the wife could obtain council accommodation herself, but Lord Justice Stamp said that he “would require a good deal of convincing that it would not be contrary to public policy to make an order for sale of the matrimonial home so as to put £5,000 into the pocket of the husband”, in the belief that the wife would be re-housed in council accommodation.
It was also pointed out that if the husband and the wife had remained together then they would not have been able to access the value in the property, as they would have required it as their home. Accordingly, the husband would not suffer any greater hardship by being “kept out of his money” than he would if the marriage had not broken down. Certainly, the hardship caused to the wife by being forced to leave her home would have been greater.
In the circumstances, Lord Justice Stamp found that it would be wrong to order an immediate sale of the property, and he therefore dismissed the appeal. Lord Justice Ormrod and Sir John Pennycuick gave concurring judgments.
So the type of order whereby a party is able to remain in the former matrimonial home as long as they wish or until they die or remarry (or cohabit with another person) became known as a ‘Martin order’. Like Mesher orders, Martin orders have been made frequently ever since, although they are, of course, just one tool at the disposal of the courts when considering financial/property settlements on divorce, only being used in appropriate circumstances.