Grounds for Refusing a Mesher Order

Mesher Orders play a crucial role in family law arrangements following divorce or separation. Named after the case of Mesher v Mesher, these orders enable one party to remain in the family home while deferring the sale of the property until a later date, often when children reach a certain age or become independent. However, there might be valid grounds to refuse a Mesher Order. This blog explores the circumstances under which a party can reject such a request, providing a thorough understanding to help individuals navigate this complex aspect of family law in England and Wales.

Understanding Mesher Orders

Before delving into the grounds for refusal, it is vital to establish a clear understanding of what a Mesher Order entails. When a couple separates, the family home may not always be sold immediately, especially if children are living in it. A Mesher Order permits one parent to stay in the home until the child reaches a specified age or a predefined event occurs.

Key Features of a Mesher Order

• Deferral of Sale: The sale of the property is postponed until a specified condition is met.
• Occupational Rights: The order grants one party exclusive rights to occupy the family home while conditions remain in place.
• Financial Provisions: A Mesher Order often includes details regarding the financial responsibilities associated with the property, such as mortgage payments and upkeep.

Legal Framework Surrounding Mesher Orders

The legal framework governing Mesher Orders primarily lies within the Matrimonial Causes Act 1973. Courts evaluate various factors before granting a Mesher Order, often considering children’s welfare as paramount. However, the decision is not just about children’s best interests; financial and practical implications also play essential roles.

Grounds for Refusal of a Mesher Order

While Mesher Orders are beneficial in many cases, there are valid grounds for refusing one. Below are the most commonly recognised reasons:

1. Financial Imbalance

One significant ground for refusing a Mesher Order is financial imbalance between the parties involved. If one party can demonstrate that the other party is financially benefiting at their expense, a court is likely to consider this aspect. For instance, if one spouse can afford alternative housing, they may argue that it is unjust for them to continue occupying the family home without contributing fairly to its upkeep. Courts will consider:

• Individual income levels
• Existing financial commitments
• Contributions made towards the marital home

2. Best Interests of the Children

Although Mesher Orders are often granted to protect children’s living arrangements, they can still be rejected if it can be shown that allowing one parent to remain in the home is not in the children’s best interests. Factors that could affect this decision include:

• The living conditions in the existing home
• The impact of the current environment on the children’s well-being
• Parenting capabilities of both parties

If one party can provide more stable and conducive living conditions than the other, the court may reject the Mesher Order to benefit the children.

3. Change in Circumstances

A significant change in circumstances since the initial agreement for a Mesher Order could also warrant a refusal. Such changes might include:

• Job loss or significant financial hardship of one party
• Relocation of one party affecting the practicality of maintaining the Mesher Order
• Changes in the children’s needs, such as medical or educational requirements

If one party can prove that the circumstances have materially changed, the court may be more inclined to refuse to make a Mesher Order or vary a Mesher Order already in place upon application by one of the parties..

4. Behavioural Factors

The conduct of the parties involved can also play a role in the decision to refuse a Mesher Order. Evidence of unreasonable behaviour, such as:

• Domestic abuse or violence
• Substance abuse issues
• General irresponsibility impacting the home environment

If the court perceives that one party’s behaviour could negatively affect the family dynamics or child’s comfort, it may lead to a refusal.

5. Feasibility of Sale

In some situations, the practicality of maintaining a Mesher Order may come into question. If the property indefinitely occupied under a Mesher Order is facing substantial financial strain, a refusal may be on the table. Factors impacting this feasibility include:

• Deteriorating property value
• Neighbourhood safety concerns
• Required upkeep or renovation costs
• Capital Gains Tax implications for the non-resident party in the future.

If the financial burden of maintaining the property outweighs the benefits of deferring the sale, the court might reject the request.

6. Uncertainty / lack of financial independence

Upon determining the fair division of matrimonial assets upon divorce, the court has a duty to consider whether or not it should give effect to a ‘clean break’ between the parties. The provision of a Mesher Order prevents this from taking place, possibly for several years and discourages financial independence between the parties.

The Court’s Discretion

It’s important to note that when it comes to Mesher Orders, the court retains significant discretion. Judges will weigh the merits of each party’s arguments while striving to achieve what is fair and just upon consideration of all the circumstances of each case. Obtaining legal advice can significantly benefit anyone involved in these proceedings. Professionals can help gather evidence and advocate for a position that reflects their client’s needs.

Seeking Legal Advice

Considering the complexities surrounding Mesher Orders, seeking legal advice is paramount. Legal practitioners like us specialising in family law can provide guidance, helping individuals understand their rights and the implications of either agreeing to or refusing a Mesher Order.

Benefits of Consulting a Lawyer

• Clarity on Rights: Legal experts can clarify the complexities of Mesher Orders, ensuring individuals know their rights.
• Evidence Collection: Lawyers can assist in gathering evidence to support a refusal.
• Representation: Skilled legal professionals can represent a client in court, advocating for their best interests.

Conclusion

Individuals facing the prospect of a Mesher Order must understand that there are valid grounds for refusing such an order. Financial imbalance, best interests of the children, a change in circumstances, behavioural factors, and feasibility issues can all be significant factors influencing the court’s decision.

Summary

• Mesher Orders allow one party to remain in the family home while deferring the sale.
• Valid grounds for refusing a Mesher Order include financial imbalance, best interests of the children, and significant changes in circumstances.
• The reason for refusal may also stem from behavioural issues affecting the suitability of the residence.
• The court retains discretion, weighing up the relevant arguments and considering all of the circumstances of an individual case before making a decision.
• Seeking specialist legal advice can significantly aid individuals in navigating these complex decisions.

At Alexander JLO we have many years of experience of dealing with all aspects of family law and will be happy to discuss your case in a free no obligation consultation. Why not call us on +44 (0)20 7537 7000, email us at info@london-law.co.uk or get in touch via the contact us button and see what we can do for you?

This blog was prepared by Peter Johnson on 2025 and is correct at the time of going to press. With over forty years of experience in almost all areas of law Peter is happy to assist with any legal issue that you have. He is widely regarded as one of London’s leading divorce lawyers. His profile on the independent Review Solicitor website can be found Here.

To follow up on any of the above please contact Guy Wilton of our family department. Guy has wide experience of acting for the firm’s clients, their family and their businesses. Guy’s experience as a lawyer started in the Northern and Welsh Circuits, including the Liverpool Courts, where he represented numerous clients after being called to the Bar, before opting to join Alexander JLO in 2017 and qualifying as a solicitor in 2024. He is a highly experienced family lawyer with a particular interest in financial remedy proceedings and child contact disputes.

Guy’s profile on the independent Review Solicitor website can be viewed here.