Q&As

Can an order be made by consent for a spouse who is not a registered owner of the former matrimonial home to remain in that property under a Mesher type order? Can a trust of land be contained within a consent order specifying that the other spouse (who is the sole owner) hold the property on trust for them both? Can the non-owning spouse undertake to make the mortgage payments on the property?

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Produced in partnership with Matthew Haynes of St Ives Chambers
Published on LexisPSL on 02/02/2017

The following Family Q&A Produced in partnership with Matthew Haynes of St Ives Chambers provides comprehensive and up to date legal information covering:

  • Can an order be made by consent for a spouse who is not a registered owner of the former matrimonial home to remain in that property under a Mesher type order? Can a trust of land be contained within a consent order specifying that the other spouse (who is the sole owner) hold the property on trust for them both? Can the non-owning spouse undertake to make the mortgage payments on the property?

The first question raises the issue of whether a Mesher order may be applied to circumstances where the former matrimonial home is registered in the sole name of only one of the spouses.

The question is posed in the context of the Mesher order being made under a consent order. Such an order can be made by way of a consent order and Critchell v Critchell is an example of this. The order arises from the case of Mesher v Mesher. Where the marital home is owned in joint names, a precedent clause is at clause 58 of the precedent: Standard order 2.1—financial remedy order—omnibus.

While a Mesher order is similar to a deferred charge, it requires the postponement of the exercise of a trust for sale of a property followed by division of the proceeds of that sale when the youngest child of the family reaches, commonly, 18 years of age. On the other hand, the deferred charge is where one party has the property transferred to them and the other party has a charge in their favour which is only realisable upon certain 'trigger' ev

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