Matrimonial Settlement: When is a Martin Order Applicable?

Martin orders are based on the case of Martin v Martin [1977] 3 All ER 762.

In certain circumstances, the court will delay the sale of the matrimonial home.

This type of order may be applicable if:

·  You have continued to live in the family home post separation and can afford to continue to do so i.e. pay all outgoings;

·  There are no children involved;

·  There is insufficient equity in the family home for you to purchase new housing;

·  You have no borrowing capacity / insufficient capital to raise a deposit;

·   As a result of sale, you would suffer hardship e.g. unable to afford to rent in your local area;

·  Your spouse / ex-spouse’s housing needs are satisfied and they have reasonable financial income.

This should be considered if you are in a much weaker financial position than your spouse / ex-spouse and cannot afford for the family home to be sold.

The case of Martin v Martin involved a long marriage of 15 years with no children. After separation, Mrs Martin continued to reside in the family home, whilst Mr Martin began cohabiting with his new partner.

Overall, the court agreed that both parties were entitled to the net equity in the family home in equal shares. However, the net equity of £10,000 when divided did not provide for enough capital for either of the parties to purchase a new home.

The court took into consideration the fact that Mr Martin had been cohabiting with a new partner, and that as a result his housing needs were met. They lived in a council house together and it was possible for the tenancy to be transferred into their joint names, which ensured that his housing needs would be provided for in the future.

Mrs Martin had applied for council housing but it seemed unlikely that she would be granted this type of accommodation.

As Mr Martin had no need for his interest in the net equity at that given time, the Court of Appeal postponed his interest from being realised.

In effect, the court order allowed Mrs Martin to stay in the family home, until one of the following events occurred:

·  Re-marriage / formation of a civil partnership

·  Leaves voluntarily

·  Death

Upon the occurrence of one of the above events, Mr Martin would be entitled to his share of the net equity of the property.

It is important to understand that your spouse / ex-spouse will still have an interest in the family home if a Martin order is made. There will be a trust of land and yourself and your spouse / ex-spouse will hold the property as tenants in common.

If you or your spouse / ex-spouse are applying to the court for a Financial Remedy Order, you should consider whether the Martin order may apply to your circumstances.

This is just one of the orders available upon the division of the family home e.g. see our blog on Mesher orders.

If you would like to find out more information about the issues raised above, please contact Susan Taylor. 0161 883 0460 or email st@taylorking.co.uk