There is one thing that divorcing couples all have in common, by the end of the process they want to put the whole episode behind them.  So when someone offers a “clean break” settlement it sounds a terribly attractive phrase.  In fact it is an elephant trap.

In the majority of marriages there is economic inequality. It is practically inevitable, whether by reason of children coming along, different career paths, postings abroad etc etc but marriages are built to deal with that.  Couples always sort out priorities between them in a working marriage – is it time to have children?  Is it worth one of the partners taking a promotion that involves posting abroad?  Is it worth one retraining for a second career?  All of these decisions involve economic consequences, and marriages regularly to deal with them.

But when a marriage ends, the economic inequalities do not magically vanish.  Perhaps they can be alleviated by dividing up the assets, but usually not entirely.  That is why spousal maintenance is such a key element of English law.

An award of spousal maintenance is designed to help the economically weaker partner to find a footing.  It is not necessarily designed to keep them up to an equal lifestyle, but it has to be sufficient to save them from sliding backwards.

But a “clean break” essentially wipes out spousal maintenance claims.  As I say, it sounds a terribly attractive phrase.  However there is a body of research, particularly from Australia, where in the early days of the Family Law Act 1975 the tendency was to be very restrictive with spousal maintenance claims.  Longer term research showed that unsurprisingly, a large number of economically weaker spouses slid back into poverty.  Accordingly, spousal maintenance now again assumes a much larger place in the armoury of orders that a judge has available.

Another reason for spousal maintenance orders being flexible is that English law recognises you cannot predict the future.  Someone may be retaining in a second career and expect to have a good job at the end of it, but the job may not materialise or the person might contract an illness which limits their working career.  Spousal maintenance orders are flexible both as to their term, and their amount.  Often they start being expressed on a lifetime basis, but if there is a material change in circumstances, the court might later bring them to an end, for example if the payer retired.  They are flexible as to the amount.  The payer may get poorer and the recipient get richer, which would suggest it is time to revise the amount or even then bring the order to an end.  Or it may be the other way around, what seemed a lot of money at the time of settlement does not seem such a lot of money ten years later.

But again I reiterate, you cannot tell the future.  That is why falling for the alluring phrase “a clean break” is to be handled with care.

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