Trigger Events To Force A Sale Following Divorce
Posted on 22nd May 2020
Our Family Law Solicitors in Lancaster have written recently about how the Courts may divide assets when looking at financial matters on divorce. One of the options the Courts has is to order that the house be held in parties’ joint names on trust of land, the Court will specify which spouse is to occupy the home pending a sale and the sale of the property is postponed until the first of a specified trigger event occurs.
There are several variations on the trust of land. The differences lie in the events that will ultimately trigger the sale. The main variations are known as “Mesher” Order, discussed in our blog, and the “Martin” Order. There is a third, which is not commonly used and that is a “Harvey Order” which is a slight variation of the Mesher Order.
As a quick recap the Mesher order offers the following as trigger events:
(a) the occupying spouse dies
(b) the occupying spouse remarries or cohabits for a set period, usually six months
(c) the occupying spouse wishes to sell
(c) the youngest child reaches a specified age or ceases full-time education
The Mesher Order is a compromise offering a medium-term solution to the problem “What will happen to the family home after divorce?” but sooner or later the occupier will have to leave the former family home to find a new home. The Courts and Family Lawyers alike are attempting to leave this type of order in the past in order to achieve a ‘clean break’ however they are still used despite the Court not being able to predict with any accuracy how much time the spouse will need to accommodate themselves or what the housing and job market will be in the distant future. However, the trigger events give clear warning to the occupying spouse that they cannot stay indefinitely and provides the spouse not in occupation with some safeguarding.
The Martin Order operates in a similar way to the Mesher Order however the triggers which will generate a sale make no reference to the children of the family. The result being that the house need only be sold if the occupying spouse chooses to sell, remarries, cohabits or passes away.
The Martin Order is often heralded as avoiding the “evil day” of a child coming of age (as we see in the Mesher Order) because whilst the spouse remains in the home and unmarried, and not cohabiting, they will not be faced with the prospect of sale. The disadvantages for the non-occupying spouse are self-apparent. The non-occupying spouse will be waiting for their capital arising from the sale for an infinite amount of time and if the non-occupier pre-deceases the occupier, their estate still would benefit yet the concept does seem unduly harsh! This type of order is rarely seen, and usually used in cases were the occupying spouse can afford the outgoings. On occasion the order will recognise the callousness of such a provision by giving the non-occupier a larger share of the equity upon the sale.
Following the criticism of the ruthlessness of the Mesher Order, the case of Harvey (Harvey v Harvey  3 FLR 141) sought to mitigate the hardship caused to the non-occupier. The Harvey Order is very similar in trigger events to that of a Mesher Order but it provides that the occupier of the matrimonial home must pay rent to the non-occupier. The requirement to pay the occupation rent is triggered by children reaching a certain age or the mortgage being paid off. MG Legal, Family Law Solicitors in Lancaster, acknowledge that this order is not commonly made, not least because of the difficulties in how the rent is assessed and paid, particularly when you consider that the rent it taxable.
What will happen to your home if you divorce?
To discuss your options with a family law expert today contact us by emailing firstname.lastname@example.org or by calling 01524 581 306.
MG Legal – Your Local Solicitors
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