What does a ‘clean break’ divorce mean in practice?

On behalf of Attwaters Jameson Hill posted on Monday, February 12th, 2018

The divorce process has terms and phrases that can be unfamiliar, and a ‘clean break’ can be one of them. Put simply, this is a break between the parties in a divorce and means that from then on, neither party has any continuing financial claim on the other. Whilst getting a divorce ends the contract of marriage, it does not sort out the financial aspects of the relationship. In order to settle the couple’s finances, there needs to be a formal agreement, known as a Financial Remedy Order, in place.

A clean break order often involves steps being taken such as the sale or transfer of the matrimonial property, and the fair division of assets such as pensions, savings and investments.

What a clean break achieves

Where possible a clean break is desirable, not least because it allows both parties to move on with their lives free from any continuing financial obligations to or from their former spouse. This means in practice that there cannot be one if the court has ordered one party to make continuing financial provision for the other in the form of maintenance. For this reason, the family courts have been implementing more fixed-term spousal payments, meaning that when they cease, a clean break can be achieved.

When a clean break may not be appropriate

In some instances, it may be appropriate for one party to pay maintenance to the other to equalise their incomes, or to provide a period of security until such time as the children have grown up, or until pension payments can be made.

These circumstances don’t preclude a clean break; it is possible to have a Deferred Clean Break Order which provides for a clean break when certain conditions have been fulfilled, e.g. when the children leave school.

The importance of a getting a clean break where possible

Although a divorce can be amicable at the time, things can change. Partners can decide to ask for more money at a later date if they think the original arrangement was unfair, or they find themselves short of money. Many people think, for instance, that a pension solely belongs to the party who is named on the policy, but that’s not the case. A pension has to be considered in the division of the marital assets, and spouses are entitled to return to court at a later date to claim their share if this isn’t dealt with at the time of the divorce and no clean break settlement is in place. This could also include demanding a share of any inheritance, lottery winning or pay rise.

In 2016, in Wyatt v Vince, a wife went back to court to make a financial claim against her husband nineteen years after their divorce had been finalised. With a clean break order in place, this would not have been possible.

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