The importance of clean break orders
Did you know that if you win the lottery, without a Clean Break Order in place, your ex can make a claim on your winnings?
When you divorce, your right to make a claim against your ex for money or property will still exist. A divorce ends the contract of marriage but does not prevent your ex from asking the Court to make an Order for you to pay them money in the future.
Money can either be paid as a lump sum, a share of assets or property, income or pensions. It is therefore very important that, even if you have a separation agreement with your ex about money when you divorce, that this agreement is recorded in a legally binding document.
This legally binding document is referred to as a Clean Break Order. In it you ask the Court by way of a Consent Order to formally dismiss the right that you and your ex have to ask for more money from each other in the future.
You cannot legally enforce the terms of your agreement without a Clean Break Order. The agreement may be a factor the Court will consider if asked to make an order at a later date, but it cannot bind the Court. This can be a problem where a ‘fair’ agreement was reached at the time of separation but the circumstances have since changed, for example, the parent with whom children live has changed, a job has been lost or a business or property has been sold at a considerable profit.
Unfortunately, many people do not consider their situation to be complicated enough to warrant a Court Order so sort out matters informally between themselves. Some later find themselves in the unwelcome position of having to deal with ‘fresh’ claims some time after separation. Even if these claims are ultimately unsuccessful, without a Clean Break Order in place, you will still have the cost and hassle of dealing with the application.
Coming to an agreement
The most constructive and cost effective way to reach a financial agreement with your ex is always to try to agree as much as possible between yourselves and family lawyers will certainly not discourage you from doing this. However it is imperative that, once you have reached your agreement with your ex, you take legal advice to ensure that agreement is turned into a Clean Break Order that binds both of you. In many situations, your lawyer may be able to do this work for you at a fixed fee.
The only way to ensure that you are protected and your ex doesn’t get a ‘second bite of the cherry’ is for you both to sign a straightforward Clean Break Order formally dismissing the claims you have against each other relating to your marriage and submit it for the Court to approve. .
The Clean Break Order is filed with the Court after Decree Nisi has been pronounced by the court in divorce proceedings. It is sensible to pursue a Clean Break Order at the same time as, or soon after, you initiate your divorce proceedings to ensure there is no delay in obtaining the order from the Court.
The procedure is very straightforward and does not involve either party attending court in most circumstances. The Court may ask a few questions before the Order is approved but these can be dealt with fairly simply by letter.
If the claim has not been dismissed, it can be revived at any time! Always ensure that there is a financial ‘Clean Break’ between you and your ex with a Clean Break Order.
For advice on Clean Break Orders contact Woolley & Co on 0800 321 3832.