Postponing the sale of the family home when separating

When a couple separates, the value of the family home is often the largest asset that they have to divide, and it can also be the most contentious. This can be for a multitude of reasons, for example, one spouse or partner may feel emotionally tied to the house, or you may be concerned about having to move children from the home they have grown up in.

‘While a clean financial break is normally what separating couples aim for, at times it may be appropriate to consider postponing the sale of the family home. This can be achieved through what is known as a ‘Mesher’ or ‘Martin’ order,’ explains Connor Williams a Litigation Executive in the family team with Borneo Martell Turner Coulston.

What is a Mesher order?

A Mesher order allows for the postponement of the sale of the family home until either a certain period of time has passed, or an agreed ‘trigger event’ occurs. It is used when there are minor children living in the family home, and it allows one of the spouses or civil partners to continue to reside there with the children. The ownership of the property is not impacted, and the spouse or civil partner remaining in the home does not ‘own’ the home outright.

Trigger events typically include:
The youngest child of the family finishing full time education; or the spouse or civil partner, who has remained living in the house, remarrying or cohabiting with a new partner for a set period of time (typically six months).

Once the order comes to an end, the family home will be sold. Then the balance of the proceeds of sale will be divided in line with whatever terms has been ordered or agreed.

What is a Martin order?

A Martin order is similar to a Mesher order in that it postpones the sale of the family home until an agreed trigger event occurs. The main difference is that a Martin order does not relate to minor children living in the house. This order is typically used when there are either no children involved, or any children the couple had are already over the age of 18.

Is postponement the right option?

This decision will depend on your circumstances. In most cases, postponement will only be delaying a problem for you to deal with in the future. Delaying matters could mean having less of a working life left to secure a mortgage for a new property. Most separating couples now prefer to cut their ties and know where they stand financially.

On occasion, a postponement may be the right option. For example, if you have very young children, you may not be returning to work until they are at school and postponing a sale could push forward the need to obtain a mortgage until a later date. You could also be tied into a good mortgage deal at the moment, which you would risk losing if the property had to be sold now.

It is important to note that postponing the sale of the home is not the only option to enable you to stay in the house. Our family lawyers will be able to advise you on the viability of other options, such as offsetting your interest in other assets to retain the family home without your former spouse or partner remaining as an owner.

How can we help?

If you are concerned over what might happen to your family home following separation, one of our family lawyers will be able to advise you on your options.

For further information, please contact Connor Williams in the family law team on: 01604 622101 or email connor.williams@bmtclaw.co.uk

Borneo Martell Turner Coulston has offices in both Northampton and Kettering.