My wife and I have a bizarrely close relationship, but it has broken down. Our relationship is totally amicable, still full of love, however we have decided to get divorced and have discussed splitting assets 50/50, and a reasonable maintenance fee plus legal maintenance for our daughter.
What we want to do is get divorced soon but not sell the family home, which is the largest asset, until our daughter has finished primary school (in 4 years). We would divide other assets as per our wishes as part of a settlement. Is this a feasible arrangement to embark on, or is it just contrary to the legal structure/absolute nature of getting divorced. I know we probably need legal/financial guidance, but wondered if anybody had views or useful insights.
Yes, such an arrangement is a possibility and is called in the trade a Mesher order after the case where it was first used.
There are sometimes cases ( usually, but not necessarily, where there are dependent children involved ) where for one reason or another, the house is needed as a residence ( almost invariably for the wife/mother ) for some time, and that need is such that the mother will be given the right to live there for the time being, and the other party, though retaining some interest in the house and/or the proceeds of an eventual sale, cannot realise that interest and / or enforce a sale, until the occurrence of certain events, usually known as triggering events. When one of these occurs, the property will have to be sold ( though a buy-out may sometimes be possible ) and the proceeds of sale divided.
So as a first step let us consider the various possible triggering events.
• Death of the occupying spouse
• Re-marriage of the occupying spouse
• ( Possibly ) cohabitation of the occupying spouse for a period, say, 12 months. This is perhaps somewhat controversial ; the argument being that the children still need a home even if Mum gets herself a new boyfriend, and that consideration outweighs the non-occupying spouse’s need for cash.
• The youngest dependent child reaching the age of 18 years or ( possibly ) completing a first undergraduate degree.
• Voluntary vacation of the property for a given period.
• Sale of the property. However, a well drafted order should make provision for the possibility of the occupying spouse moving home and the new home is then held on similar terms.
Triggering events are a matter for negotiation but the above are the most usual. This list does not purport to be exhaustive.
So should you have a Mesher order at all ?
• Mesher orders have been criticised on the grounds that they merely put off a difficult decision till a later date. They can mean that the wife is forced to seek accommodation at a time in her life when she may be vulnerable and / or short of cash. Notwithstanding these objections, there will be cases where it is really the only viable solution to the problem of finding a home for the children.
• If the house has to be sold sooner or later, it is arguably better to put off the decision until the children have flown the nest.
• A Mesher order does at least give the occupying spouse time to plan for the day when the property has to be sold.
• It does not deprive the non-occupying spouse of his interest in the property altogether. The writer admits to getting more than a little narked when the eventual realisation of the non-occupying spouse’s share is described as an unmerited windfall rather than as the delayed realisation of an entitlement which, for reasons of public policy, he is not allowed to realise at the time of the divorce.
• As we have seen, a Mesher order is less likely to be made if the occupying spouse is not likely to be able to be in a position to secure accommodation on eventual sale. It is also less likely if the house is larger than the occupying spouse reasonably requires.
• If the equity is substantial, sufficient to re-house both parties when the property is eventually sold, a Mesher order can often offer the best solution.
You need to remember, though, that the family home, important though it is, is only part of the picture. There are other implications too. For example, maintenance ( child and spousal ) and pensions. The above is a general commentary but legal advice is always necessary.