When a marriage or civil partnership ends, the fate of any jointly or individually owned property can be a contentious issue. Below, we address frequently asked questions about how family courts in England and Wales handle such disputes, including the possible use of Martin or Mesher Orders.

1. What happens to the family home when we divorce?

If you are married, you typically have the right to a share in the family home, regardless of whether your name is on the deeds. How you divide or deal with this share varies based on individual circumstances. Options often include:

• Selling the property and splitting the proceeds
• One partner buying out the other’s interest
• Retaining joint ownership (less common, but sometimes suitable)

In England and Wales, the courts prioritise the welfare of any children when finalising financial settlements. This consideration can significantly influence the outcome of property disputes.

2. What if I don’t have enough money to rehouse myself?

If the funds available to you—such as your share of the house sale proceeds—are insufficient to rehouse, you may be able to seek a Martin Order or Mesher Order. These court orders can help secure accommodation for you (and possibly children) even when there isn’t enough capital to buy separate properties for both spouses.

3. What are Martin Orders and Mesher Orders?

Q: Martin Orders

• A Martin Order typically allows one spouse to remain in the matrimonial home for life (or until they remarry), even though ownership of the property may remain in shared names or belong to the other spouse.
• It is most commonly used in cases without dependent children, ensuring that someone who cannot rehouse is not forced to move out immediately.

Q: Mesher Orders

• A Mesher Order defers the sale of the family home until a specified event—often when the youngest child finishes education or reaches adulthood.
• Ownership of the property remains shared, but one spouse lives there with the children until the trigger event occurs. After that, the home is usually sold, and proceeds are divided based on what the court has decided.

Both Martin and Mesher Orders are aimed at protecting the less financially stable spouse and, in Mesher’s case, any children who need a secure home.

4. What if we’re not married?

In England and Wales, there is no concept of “common law marriage.” If you have been cohabiting without tying the knot, different legal provisions apply, primarily under The Trusts of Land and Appointment of Trustees Act 1996 (ToLATA). ToLATA allows the court to:

• Determine each partner’s share in a property
• Decide how any sale proceeds are divided
• Consider buyout arrangements if one person wishes to remain in the home

If there are no children involved, the guiding principle is generally fairness, with the court examining each person’s contributions and intentions.

5. How do courts decide on property disputes for cohabiting couples?

• Joint Ownership: If both names are on the deeds, the starting point is usually a 50/50 split, unless a written agreement or substantial evidence demonstrates a different ownership proportion.
• Unequal Contributions: One partner can argue for a larger share if they contributed more financially towards the mortgage or upkeep. The court will assess each person’s input and decide accordingly.

6. Why is professional advice crucial?

Property disputes during divorce or separation can be legally and emotionally complex. An experienced family law solicitor can:

• Help ensure financial disclosure is thorough and accurate
• Advise on the suitability of Martin or Mesher Orders (where children’s welfare is a factor or if long-term living arrangements must be safeguarded)
• Guide unmarried couples through ToLATA proceedings

Contact HM & Co. Solicitors
Address: 186 Lower Road, Surrey Quays, London SE16 2UN
Telephone: 02071128180
Email: info@hmsolicitorsltd.com

Our family law team has extensive experience in dealing with property disputes arising from divorce and separation. If you need guidance, please get in touch to discuss how we can help you achieve the best outcome for your unique situation.