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 realisable. 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.
Reasons you might NOT want a clean break
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
- An immediate clean break. This is where all claims for maintenance, pensions, lump sums and property are dismissed immediately.
- An 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.
- 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 non-resident parent to pay child maintenance at the CSA 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.
Family law solicitor, Bicester