Creating two homes where once there was one is often an impossible conjuring trick for separating families. Often there isn’t enough equity in the family home for both parents to purchase new properties and mortgage capacities are often stretched to the limits in any event.
Section 25 of the Matrimonial Causes Act 1975 sets out the various factors the Court needs to consider when reaching decisions on financial settlements (such as the resources and needs of the parties, earning capacity, health issues etc) but makes it clear that the children will be the first consideration.
Ensuring the children of the family are safely and securely housed is therefore usually the first issue to tackle. It is important to try to ensure both parents have a comfortable home to spend time with the children but this is not always possible and priority must be given to ensuring one home is preserved or that the home in which the children spend most of the time is secure.
Mesher orders can be useful in ensuring a home for children is maintained throughout their minority whilst protecting the interest of the other parent. The Court will usually try to release some capital to the other parent if possible with the balance following when the children are grown. There are also other potential trigger events for the crystallisation of the other parent’s interest e.g. sale or remarriage. If it is not possible any funds to be released now, then the Court will usually strive to keep the other parent’s income as unburdened as possible so he or she can rehouse with either a larger mortgage or rent in the interim.
A sale of a family home which essentially makes both parties homeless and dependent on temporary accommodation creates a legal and practical problem and will very rarely be the best option for the children of the family. A Mesher Order may well be the sensible solution but, having looked at all the circumstances, a family lawyer may well come up with some other creative solutions to consider as well.