We often hear divorcing couples say they want a “clean break”. How many of them, however, really understand what is meant legally by “a clean break”?
Having a clean break means that from a date specified in a Court Order, neither party to the marriage will be able to make further financial claims against the other person. This means there can be no further claims for maintenance, lump sums, pension orders or for property.
Unless the court makes a clean break order for each of these types of claims, the ability of former spouses to make such claims in the future remains live (subject to certain exceptions). So, without a clean break, your ex could still have a claim on your property, inheritance, or a lottery win many years after you have divorced.
In many cases, achieving an immediate clean break for capital, property and pension claims is achievable. Property, pensions, savings and investments are divided up at the time of divorce, and a court order confirms these arrangements and records that there can be no further claims of this nature.
Where it can sometimes be difficult to achieve an immediate clean break is for spousal maintenance. For there to be an immediate clean break on the maintenance claims, there would have to be no ongoing maintenance awarded. Whether this is fair and reasonable will depend on your respective incomes, outgoings and whether there are any young children.
Please note: whilst it is possible for divorcing couples to achieve a clean break between each other, it is not possible to “clean break” your responsibilities for the care of your children. The obligation on the paying parent to pay child maintenance at the CMS calculated rate will continue regardless of any clean break in a matrimonial Order.
Whether a clean break is appropriate or not, you should always have a consent order setting out the financial agreement you have reached.
Are there any reasons to not get a clean break divorce?
Where one party has a very limited income and/or has children living with them, a clean break as to maintenance may be inappropriate, and instead, keeping spousal maintenance claims alive can provide a valuable safety net.
If the person with the day to day care of the children becomes unable to work, they have the option to ask the former spouse for further financial assistance, provided there has been no clean break in respect of their spousal maintenance claim.
For the other party, having a clean break and knowing your former spouse cannot make any further financial claims will often be the preferred option.
Is a clean break order automatic on divorce?
There is no automatic presumption that there will be a clean break on divorce. The court does, however, have a duty to consider whether there should be a clean break between divorcing couples and when that clean break should take effect.
The court will consider how soon after the end of the marriage, the financial obligations between former spouses should terminate. Where there are young children or the parties have been married a long time, and one party has been out of work for many years, it may take longer to achieve a clean break than for a young couple with no children.
Types of clean break
Immediate clean break
This is where all claims for maintenance, pensions, lump sums and property are dismissed immediately.
Immediate clean break where future maintenance payments have been capitalised
This will achieve an immediate clean break, but only because the ongoing maintenance payments one party would have been entitled to receive have been paid to him or her upfront.
Deferred clean break
In this situation, the clean break will happen at a defined point in the future, for example, when the youngest child is 18 or finishes school, or perhaps after a specified number of years, during which time it is anticipated the receiving party will be able to find a job and be able to support themselves.
When can you get a clean break order?
You can get a clean break order at any point after your Conditional Order for divorce has been issued. You will need to have agreed on how your matrimonial assets will be separated, and the court will need to approve the terms of your financial separation before issuing the clean break order.
A court will not make a clean break order if it believes the terms of your financial settlement are unfair or put either party at risk of serious financial hardship.
How do I get a clean break order?
When you apply to a court for a consent order to make your financial settlement legally binding, you can also request a clean break order to ensure all financial ties are cut between you and your former partner.
Do I need a clean break order?
For the majority of people, we would always recommend getting a clean break order. This gives you security against any claims by your ex-partner in the future. There is no way to predict what your financial situation may be in five, ten or twenty years’ time, so it is best to protect yourself.
The only circumstances where a clean break order may not make sense is where there will be ongoing spousal maintenance paid. Even where spousal maintenance is to be paid, it may still be possible to get a deferred clean break order if the spousal maintenance will only be paid for a fixed term (e.g. until your children leave home)
What should I do if my ex won’t sign a clean break order?
If your spouse does not agree to the clean break order, you can apply to the family court for an order. This will involve paying a court fee, making financial disclosure and attending hearings before a decision can be made. This will be more expensive and take longer than if you can agree on a clean break order voluntarily.
In most cases, if your spouse will not immediately agree to a clean break order, it will be possible to resolve the situation through negotiation or alternative dispute resolution. This can save you a lot of time, legal costs and stress.
If your ex-partner will not sign a clean break order, please get in touch, and we will be happy to help.
What is the difference between a clean break order and a consent order?
A consent order is a court order that formally records the details of a negotiated financial settlement between you and your ex-partner. It makes the agreement legally binding.
A clean break order is a court order than legally cuts financial ties between you and your former partner. Once you have a clean break order, neither you nor your former spouse will be able to make any future claims over each other’s income, property or other assets.
Find out more about consent orders.
How long does a clean break order take?
How long it takes to get a clean break order will depend on how quickly you can agree on the terms of your financial settlement and how long it takes the court to process your application. Unfortunately, there is no set timeframe, but it will typically take several months.
Is a clean break order final?
Yes, the intention behind a clean break order is that it provides finality, completely severing all financial connections between you and your ex-partner.
Can a clean break order be overturned?
There are some very limited circumstances in which a clean break order can be overturned. These include:
- If there is a very significant and completely unforeseeable change in circumstances soon after the order is made
- Where there was evidence of mistake or fraud, e.g. failure to properly disclose assets during the divorce settlement process
If you wish to have a clean break order overturned, it is important to seek specialist advice early to find out whether this may be possible.
Get expert help with making a clean break order
Exactly how to deal with your finances during divorce is not always immediately clear. It is therefore sensible to seek specialist legal advice at the earliest opportunity. Our divorce settlement lawyers can advise on your options and help to ensure you get a fair division of finances that meets your needs and protects your long-term financial security.
Family law solicitor, Bicester