Sometimes the term ‘clean break’ is used to describe divorce settlements that are not strictly speaking clean breaks at all. Here we answer some of the common questions our clients ask about this type of family court order.
What is a clean break divorce?
The term is used to describe a specific type of court order following divorce. Each party dismisses any financial claims against the other so that once the divorce is finalised there can be no claim for further financial provision by one party against the other.
It does not cover a parent’s financial obligations to his or her children. These are dealt with separately. Financial claims may also be reopened in certain circumstances where it becomes clear that one spouse has not fully disclosed his or her assets at the time of the settlement.
What about maintenance payments?
In a clean break, one spouse pays the other a lump sum figure in place of regular maintenance.
How do I apply for a clean break order?
The court can decide to make this type of order even if the divorcing parties do not ask for it. Or it can make the order as part of an overall consent order. To approve a clean break order the judge must be satisfied that the agreed terms are fair to both parties. And this means the parties must provide all relevant financial information to the court in sufficient detail.
There is a considerable amount of paperwork involved and unless your finances are extremely straightforward you should draft your proposals carefully. Many people seek specialist legal advice at this point. This is because of the potentially negative long-term repercussions if the draft order is not in the correct form.
What paperwork is involved?
- A completed Notice of Application form
- Court fee
- Your draft proposals
- Financial information form
When does a clean break come into effect
The clean break takes effect as part of the consent order approved by the court.
Will I have to go to court?
Unless your financial matters are complicated or the proposed terms appear to disproportionately favour one side then you are unlikely to have to attend court. A solicitor familiar with family court procedure will understand the precise information necessary to enable the court to make a decision on the clean break provisions. If one of you is acting without legal representation the court is likely to ask you to attend.
Who should seek a clean break?
Although not suitable in every case, clean break divorces are attractive to many divorcing couples. They result in a complete separation of financial matters enabling parties to embark on a new chapter in their lives. The government and courts encourage clean breaks because they provide certainty in family matters. They are therefore considered to be in the public interest.
Clean breaks are particularly common where both parties have clear future earning power, the marriage has been short and there are no young children.
In the absence of a clean break, a spouse can revisit financial matters at any time. If you inherit money or your earnings increase substantially you may find yourself the subject of a financial claim decades after your divorce.
When is a clean break suitable
Sometimes regular maintenance payments instead of a lump sum payment that leads to a clean break may be more appropriate. For example:
- Where one spouse is retired and has reduced earning capacity
- There are young children
- The earning capacity of one spouse is unclear
Can I overturn a clean break?
This would seem to go against the very essence of this type of order. But there are certain circumstances in which you can seek to overturn. These include where a spouse has failed to disclose all of his or her assets.
Generally speaking however the courts are reluctant to intervene. So a party seeking to reopen financial matters is likely to have to show that the alleged non- disclosure would have substantially altered the terms of the original order.