One of the most common disputes in family law is over a couple’s assets. Specifically, any properties they own such as the family home. This can become an issue following a divorce or separation, especially if at least one of the parties has been married more than once.
These disputes can also be difficult to deal with as they usually come at a time of great emotional turmoil. After all, the end of a marriage is rarely an easy thing to go through. At Stowe Family Law we provide objective, helpful advice about how to approach these difficult issues.
It is important to note that if you are married, you automatically have the right to a share in the family home regardless of whose name is on the deed. How much of a share, however, is not set in stone and will need to be worked out when you separate.
Will you sell the family home and divide the profit between you? Will one of you buy out the other’s share so they can remain in the house? These are among the options that need to be properly weighed before you embark upon a course of action.
In England and Wales, the law states that when it comes to divorce, the priority of any settlement is the welfare of any children you have. This applies equally in divorce and separation cases, and can affect the outcome of a property dispute.
But what if you do not have enough money to rehouse yourself, even with your share from the sale of the family home? If that is the case do not despair. There are certain steps you can take such as applying for a Martin or a Mesher Order.
What Are Martin and Mesher Orders?
These family court orders have similar-sounding names and both relate to the arrangements which may be made concerning the family home after divorce. But despite the ease with which they can be confused, it is important to know that they are distinct from one another.
These two orders – named after real-world cases in 1980 and 1978 respectively – were popular in the 1980s and 1990s as a way to protect the interests of the less well-off spouse, along with the couple’s children in the case of Mesher Orders. They were designed to deal with cases where there isn’t enough capital for both former spouses to rehouse themselves. If one cannot do so, even with their share of the profits from a sale, it is considered unfair for them to lose their interest in the equity of the property.
So, what’s the difference between the two?
A Mesher Order is essentially a postponement of the sale of a property for a specified period of time. They are made when children are involved. These orders allow one spouse and the children to remain living in the family home until the date the Courts have decided upon. Despite the occupation by one party, the property will remain in both party’s names throughout this period.
As for when a Mesher Order will end, this is usually either when the former couple’s youngest child turns 18 or they complete their secondary education, whichever is later. However, the order can be extended in some circumstances, to cover the youngest child’s higher education.
Similarly, a Martin Order is also a postponement of the sale of the family home but this does not relate to the ages of any children. As a result, it is more commonly used when the parties in question have no children under the age of 18. With this type of order, the “trigger event” – when the house must be sold – is obviously different. It can be the occupying party’s re-marriage or cohabitation with a new partner. However, in some instances, the occupying party could be entitled to remain in the house for the rest of his or her life. The property would only be sold when that party dies.
Martin Orders are typically made when the Family Court concludes that a wealthy spouse does not need immediate access to the capital locked up in the couple’s former home, and that the less wealthy spouse would be unable to rehouse themselves if the former marital home was sold and their interest in the property was realised.
Are these orders a good idea?
Many family lawyers are not fans of Mesher and Martin Orders and prefer to see them as a measure of last resort. Likewise, the courts prefer to sever the financial ties between divorcing couples, if at all possible. They believe Mesher and Martin Orders simply store up problems for the future when the property must be sold.
As a result of these attitudes, these orders have fallen out of favour since the height of their popularity a few decades ago and are now used much less commonly.
What if a Mesher or Martin Order is my only option?
First and foremost, it is essential that you get legal advice because it may turn out that there are other options. Finances following a divorce can have an impact on your life for years to come so it is vital that you know what you are getting into before taking action. An experienced family lawyer – like the ones we have here at Stowe Family Law – will be able to give you a realistic assessment of how much you can expect from a financial settlement and what difference a Mesher or Martin Order will make if you pursue one.
What if we’re not married?
Contrary to popular belief, there is no such thing as ‘common law marriage’ in England and Wales. As a result, there are no laws that explicitly protect cohabitees when a relationship breaks down in relation to property disputes. In these scenarios, applications can be made under The Trusts of Land and Appointment of Trustees Act 1996 (ToLATA).
This Act allows the Court to determine how much interest each party has in a particular property. This way, formerly cohabiting couples can figure out, for example, how much will be paid to each of them upon sale of the house or how much one must pay to the other to buy out their share and continue living in the family home. ToLATA shapes the Court’s decision-making process on these disputes.
If a property is held in joint names, the Court will begin on a presumption that the interest is split exactly down the middle unless there is an agreement in place which states otherwise. If such an agreement is not in place but one party claims they should have a larger share in the property – perhaps based on their financial contributions to the mortgage or upkeep – then the Court will decide how the division should be made. If there are no children to consider, who would obviously take priority, the Court is guided by the notion of fairness.
What is the best possible result for everyone involved?
It is a complicated area of the law, so it is important that you are properly advised by a professional. Stowe Family Law has a terrific team of lawyers who have extensive experience dealing with such disputes. To talk about this in more detail, please get in touch.