What are Martin orders 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 they are distinct and should not be confused.
These two orders were named after real world cases in 1980 and 1978 respectively. They 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 have since fallen out of favour and are used less commonly today. The courts now prefer to sever the financial ties between divorcing couples if at all possible and view Mesher and Martin orders as storing up problems for the future when the property must be sold.
A Mesher order is essentially a postponement of the sale of a property for a specified period of time, during which it will remain occupied by one spouse and the couple’s children. The property will remain in both party’s names throughout this period.
The order will come to an end when the youngest child of the family reaches the age of 18 or completes secondary education, whichever is later. The period could be extended to cover tertiary education.
A Martin order is a postponement of the sale of the family home which does not relate to the ages of the children. It is therefore used in cases when there are no children under the age of 18. With this type of order, the “trigger event” – when the house must be sold – can be the occupying party’s re-marriage or cohabitation with a new partner. In some instances the occupying party could be entitled to remain in the house for the rest of his or her life. On death, the property would then be sold. A family court may conclude that the wealthier 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.
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