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How important is a ‘clean break’ in divorce?

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Divorce ends a marriage completely, right? Well, it is the legal ending of a marriage but it’s not the legal severance of financial ties, for that you need a clean break.

Having practised in divorce and family law for 20 years, the one aspect of my job which never ceases to surprise me is how many people do not realise that as well as getting divorced, they need to tie up financial matters formally with their ex-spouse too.

I have heard too many times to recall that someone’s finances are ‘safe’ now that they are divorced and each time I hear those fated words I immediately go into client protection mode. All too often I have been in a social setting and found myself educating poor souls who do not realise that their assets are not safe at all.

The legal position is that a divorce, namely the decree absolute, only ends the marriage between two spouses, it does not ‘shut down’ the financial claims that the parties to a marriage (or indeed a civil partnership) are able to make against other another.

It is only when an Order has been made separately by the Court dismissing those financial claims, commonly referred to as a ‘clean break order’ that both parties are protected.

Of course a clean break is not suitable for every case, where there are young children or maintenance payments are being made, a clean break or at least an immediate clean break is unlikely, but for many cases, it is essential - just as important as the decree absolute.

I have unfortunately looked after many clients who were divorced many years ago, they did not pursue a clean break and this has come back to haunt them, in one instance 15 years after divorce where an ex-spouse made an application for financial relief against their now very wealthy ex.

If I have asked my clients why they did not pursue a clean break at the time of their divorce their answers differ, ‘I didn’t realise I needed to,’ ‘I thought this wouldn’t happen to me,’ and all too commonly - ‘I wasn’t worth anything at the time of the divorce.’

The reality is that the Court does not favour delay and quite often, but not always, the Court will adopt the view that too much time has gone by, that the former spouse has demonstrated their ability to look after themselves, that the assets were acquired post marriage.

Whilst this does provide some reassurance - there is no guarantee. Defending an application for financial relief can involve significant legal costs, not to mention extreme upset and stress which can easily be avoided if a clean break is obtained at the time of the divorce.

I urge anyone going through divorce proceedings to give serious consideration to the advantages of obtaining a clean break immediately, having regard to the individual circumstances of their case.

 

Rebecca Franklin
Divorce and family lawyer, Birmingham

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