What is a Clean Break Order?
A Clean Break Order is used to legally terminate future financial obligations or responsibilities between a couple that is divorcing or dissolving their civil partnership. They offer a legal way for parties to move on without the concern of any future claim on their assets from their ex-spouse.
While the Decree Absolute will formally end the marriage, it does not sever future financial ties between the former couple. Without a valid, court-approved Clean Break Order in place, the financial commitment between former spouses and civil partners will survive a divorce or partnership dissolution.
If your future financial circumstances change, for example if your salary increases or if you receive an inheritance, your former spouse could make a claim against your new wealth. Potential future financial claims could include:
- Claims against future income or windfalls
- Claims for maintenance payments or income support
- Claims in relation to pensions
- Claims against a former spouse’s estate after death
A Clean Break Order removes any possibility of future financial claims between former spouses and civil partners, ensuring the financial commitment between parties ends with the divorce.
Why apply for a Clean Break Order?
A Clean Break Order can be beneficial in many circumstances. For example, where a separating couple want to ensure there are no ongoing maintenance payments or continued joint ownership of assets, or where the marriage was brief and there are no children or few or no assets to divide.
Even where a divorcing couple has agreed a financial settlement with a view to enabling a clean break, the agreement will not be legally binding unless it has been approved by the court. A Clean Break Order is final and binding on both parties, and cannot be subsequently amended by the court unless there are exceptional circumstances.
The financial settlement between divorcing parties should be set out in a Consent Order, detailing how assets such as any property, savings and pensions will be divided on divorce. The Clean Break Order will also be needed, to legally remove future financial commitments between the former partners.
In addition, without a Clean Break Order, financial claims are still potentially valid and enforceable where a former spouse is co-habiting with a new partner, even if they have co-habited for a number of years, provided they remain unmarried.
Limitations of a Clean Break Order
Clean Break Orders are not necessarily suitable for every divorce. If there is a risk that your income will decrease or potential that your former spouse’s income or assets may increase in the near future, a Clear Break Order may not be in your best interests.
Similarly, if one party earns considerably less than their ex-spouse, a Clean Break Order may only be possible if substantial assets or a lump sum is transferred at the point of divorce to meet that party’s needs. If this is not an option, then maintenance may need to be paid to them indefinitely or for a defined period of time. This is common where one party has taken time out of employment to look after young children.
In other circumstances, it will not be possible to end parties’ financial ties, for example where the sale of the family home will not enable both parties to rehouse adequately.
Clean Break Orders are reliant on all financial matters and assets having been divided and settled between the couple at the point of divorce. For example, a house having been sold or one party having bought out the other’s share, and assets either having been divided or liquidated and divided.
In cases where there are some assets which have not yet been divided, for example a house which is yet to be sold, partial break orders can be arranged which protect both parties from future claims but make the exception of specific assets which the parties are yet to split.
If continued payments such spousal maintenance form part of the financial settlement, and parties still wish to put a Clean Break Order in place, it may be possible to use a deferred break order. This is a binding order which provides for a clean break once certain conditions have been met, for example once any children are no longer deemed dependant.
Ongoing payment responsibilities for child maintenance are dealt with separately and would not covered by a Clean Break Order, since financial responsibilities in respect of child support will continue until any dependent children have reached maturity.
How and when to apply for a Clean Break Order
Clean Break Orders are dealt with during the divorce or dissolution process, forming part of the financial settlement discussions.
An application to the court for the final agreed order should be made when initiating your divorce proceedings to avoid delay in obtaining the order from the court once the first stage Decree (Decree Nisi) has been announced.
Once the Decree Nisi has been declared and the divorce date has been set, the court has the power to rule on the Clean Break Order, among other financial settlement issues. Clean breaks must be applied for separately to the Decree Absolute, which formally ends the marriage contract.
Should either spouse wish to apply to the courts independently, they will need to provide the courts with a Notice of application by consent (demonstrating that the ex-spouse agrees to the clean break order), a draft order, a statement of information form, a completed Form A, and the court fee.
In most cases court appearances will not be required, unless there is a complication or dispute with the order.
What does the court taken into account when considering Clean Break Orders?
The court is obligated to ensure Clean Break Orders achieve fair and final resolution of financial disputes between divorcing parties. Courts deal with financial settlements on a case by case basis and will take into account a number of factors when considering whether to approve, amend or reject the terms of an order:
- The length of the marriage
- Whether the couple lived together and for how long
- The wealth of each party
- Whether the divorce settlement is considered fair
- Whether both parties have a job and steady income
- Any dependent children
If the judge deems the clean break to be fair, they will grant the Clean Break Order to end financial ties at the point of divorce. The Order then becomes legally binding on both parties.
Should I seek legal advice when applying for a Clean Break Order?
Without a valid Clean Break Order in place following divorce, future earnings and income – such as salary increases, inheritance or a lottery win – could be subject to a claim by an ex-spouse. The possibility remains that you could face a claim for financial provision such as maintenance or lump sum orders.
A Clean Break Order, approved by the court, can protect against this risk, and help you to live without the uncertainty and potential future expense and demands of a financial claim from your former partner.
Even in amicable divorces, it is important both parties feel their best interests are protected and seeking legal advice to determine whether a clean break is right for you, or what other options are available, is an important step.
Take advice from an experienced solicitor as to the suitability of a Clean Break Order for your circumstances and best interests, and for help and guidance with drafting the order and making the subsequent court application as part of your divorce proceedings.
The matters contained in this article are intended to be for information purposes only. This article does not constitute legal advice and should not be treated as such. Before acting on any of the information contained herein, expert legal advice should be sought.