We often hear divorcing couples express a desire for a “clean break,” but how many truly grasp its legal implications?
A clean break, in legal terms, means that from a specified date in a court order, neither party to the marriage can make further financial claims against the other. This includes claims for maintenance, lump sums, pension orders, or property.
Without a clean break order for each of these types of claims, former spouses retain the ability to make such claims in the future (with certain exceptions). This means your ex could potentially have a claim on your property, inheritance, or even a lottery win years after your divorce.
In many cases, achieving an immediate clean break for capital, property, and pension claims is feasible. Assets like property, pensions, savings, and investments are divided during the divorce process, and a court order formalises these arrangements while preventing further claims of this nature.
The challenge often lies in achieving an immediate clean break for spousal maintenance. This would require no ongoing maintenance to be awarded, which hinges on factors like your respective incomes, expenses, and whether there are dependent children.
Please note: While divorcing couples can achieve a clean break between themselves, it’s important to understand that this does not extend to parental responsibilities. The obligation to pay child maintenance at the Child Maintenance Service (CMS) calculated rate continues irrespective of any clean break in a matrimonial order.
Whether a financial clean-break divorce is suitable or not, it’s advisable to have a consent order documenting the financial agreement reached by both parties.
Is a clean-break order the same as a financial order?
A clean break order is a specific type of financial order used in divorce proceedings to outline how assets will be divided. When a financial order includes a ‘clean break clause’, it is referred to as a ‘clean break order’.
Are there any disadvantages to a clean-break order?
In situations where one party has a limited income and/or is responsible for caring for children, a complete clean break regarding maintenance may not be suitable. Keeping spousal maintenance claims active can serve as an important safety net.
If the parent with primary care responsibilities for the children becomes unable to work, they retain the ability to seek additional financial support from their former spouse, assuming there hasn’t been a complete clean break regarding spousal maintenance.
On the other hand, for the other party, having a clean break and the assurance that their former spouse cannot make further financial claims often represent the preferred option.
Is a clean-break order automatic on divorce?
There is no inherent presumption that a clean break will occur upon divorce. However, the court is obligated to assess whether a clean break is appropriate for divorcing couples and determine the timing of such a break.
The court will consider how soon after the marriage’s dissolution the financial obligations between former spouses should end. In cases involving young children or long-term marriages where one spouse has been out of work for an extended period, achieving a clean break may take longer compared to a situation involving a younger couple without children.
How long does a clean-break order take?
The timeframe for obtaining a clean break order depends on how quickly you can agree on the terms of your financial settlement and the court’s processing time for your application.
Unfortunately, there is no fixed timeframe, but it generally takes several months. If you can reach a clean break agreement amicably with your ex-partner, this process will typically be much quicker than if you need to apply to court for a decision on the matter.
How much does a clean-break order cost?
The cost of obtaining a clean-break order varies depending on the circumstances. For straightforward cases, we may offer a fixed fee, whereas more complex situations would likely be charged at an hourly rate.
To learn more about our pricing or discuss the cost of a clean-break order, please contact us directly.
Do both parties have to agree to a clean break order?
No, you do not always need both parties’ agreement to obtain a clean break order. As explained below, you can apply to the court for such an order without your spouse’s participation. However, in many cases, a clean-break agreement can be reached between the separating spouses.
What should I do if my ex won’t sign a clean break order?
If your ex-spouse refuses to sign a clean break order, you have the option to apply to the family court for an order. This process involves paying a court fee, providing financial disclosure, and attending hearings before a decision is made. It can be more costly and time-consuming compared to reaching a voluntary agreement on a clean break order.
In many cases, if your spouse does not immediately agree to a clean break order, the situation can be resolved through negotiation or alternative dispute resolution methods. These approaches can save you time, legal expenses, and stress.
Resolving a disagreement over a clean break order can involve constructive negotiation supported by solicitors, mediation, or arbitration, all of which can be effective in such situations.
If your ex-partner refuses to sign a clean break order, please contact us, and we will be happy to assist you in exploring your options.
Is a clean-break order final?
Certainly, the purpose of a clean break order is to achieve finality by 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.
Types of clean break
Immediate clean break
This is where all claims for maintenance, pensions, lump sums, and property are terminated immediately.
Immediate clean break where future maintenance payments have been capitalised
This will achieve an immediate clean break by providing upfront payments for ongoing maintenance payments that one party would have been entitled to receive.
Deferred clean break
In this scenario, the clean break will occur at a specified future point, such as when the youngest child reaches 18 or completes schooling, or after a set number of years. During this period, it is expected that the receiving party will secure employment and become self-supporting.
When can you get a clean break order?
You can obtain a clean-break financial order at any time after receiving your conditional order for divorce. To do so, you must have reached an agreement on how your matrimonial assets will be divided, which the court must approve before issuing the clean break order.
The court will not grant a clean break order if it deems the terms of your financial settlement to be unfair or if they pose a risk of serious financial hardship to either party.
How do I obtain a clean break order?
When you apply to the court for a consent order to formalise your financial settlement, you can also request a clean break order to sever all financial ties between you and your former partner.
Do I need a clean break order?
For most individuals, obtaining a clean break order is strongly recommended, as it provides security against future claims by your ex-partner. It’s impossible to predict your financial circumstances in the future, so it’s wise to protect yourself.
The only scenario where a clean break order might not be suitable is if ongoing spousal maintenance is involved. Even in cases where spousal maintenance is required, it may still be possible to obtain a deferred clean break order if the maintenance is only for a specified term (e.g., until your children reach adulthood).
What’s the difference between a clean break order and a consent order?
A consent order is a court order that officially documents the specifics of a negotiated financial settlement between you and your ex-partner, making the agreement legally binding.
A clean break order is a court order that legally severs financial ties between you and your former partner. Once a clean break order is obtained, neither you nor your former spouse can make future claims regarding each other’s income, property, or assets.
We can help with applications for consent orders and provide advice on your options if your ex-partner refuses to sign a consent order for any voluntary settlement you have reached.
Get expert help
Determining how to handle your finances during divorce is not always straightforward. Seeking specialist legal advice early on is advisable. Our divorce settlement lawyers can provide guidance on your options, including pursuing a clean break divorce, to help ensure you achieve a fair division of finances that meets your needs and safeguards your long-term financial security.
