Clean Break Orders

Understanding Clean Break Orders in Divorce: Benefits, Process, and Considerations.

Introduction:

Divorce can be a complex and emotionally challenging process. As couples navigate through the legalities of ending their marriage, the concept of a “clean break order” often emerges. A clean break order is a financial agreement that aims to finalize all financial ties between the spouses upon divorce. This article will explore the meaning of a clean break order, its benefits and disadvantages, whether a lawyer is required for the process, and whether it is necessary when remarrying.

What Does Clean Break Mean in Divorce?

A clean break in divorce refers to a financial settlement that ensures both parties are financially independent of each other once the divorce is finalized. It encompasses the complete severance of financial ties between the spouses, ensuring that neither party can make financial claims against the other in the future.

Advantages of a Clean Break Order:

• Financial Independence: One of the significant advantages of a clean break order is that it grants financial independence to both parties. Each spouse can plan their future without the worry of potential claims or financial obligations toward their ex-partner.
• Closure and Emotional Relief: By finalizing all financial matters, a clean break order can provide emotional closure, allowing both parties to move forward with their lives without ongoing financial disputes.
• Certainty and Security: A clean break order provides certainty and security, as both parties know exactly what financial resources they are entitled to after the divorce. This eliminates the uncertainty and anxiety associated with potential future claims.
• Protection of Assets: A clean break order safeguards assets from future claims. It prevents any post-divorce disputes over property, savings, investments, or inheritance.
• Streamlined Process: Opting for a clean break order can streamline the divorce process, as both parties aim to resolve financial matters without prolonged negotiations or court battles.

Disadvantages of a Clean Break Order:

• Unequal Division of Assets: In some cases, a clean break order may lead to an uneven distribution of assets, leaving one party financially disadvantaged, especially if one spouse is economically dependent on the other.
• Potential Financial Insecurity: For the financially weaker spouse, a clean break order might create financial insecurity, as they may not receive sufficient funds to support themselves adequately.
• Foregoing Future Claims: Agreeing to a clean break order means both parties give up the right to make any future financial claims against each other, even if there are significant changes in their circumstances.

Clean Break Order After Decree Absolute:

A clean break order can be agreed upon and finalized after the decree absolute, which is the legal document that officially ends the marriage. It is important to note that once the decree absolute is granted, both parties are legally divorced, but financial ties still exist until a clean break order is obtained.

Do I Need a Solicitor for a Clean Break Order?

While it is possible to draft a clean break order without legal representation, it is highly recommended to seek advice from a consent order lawyer or a clean break order lawyer. A solicitor can ensure that the agreement is fair, legally binding, and covers all necessary financial aspects, minimizing the risk of future disputes.

Do I Need a Clean Break Order If I Remarry?

Yes, obtaining a clean break order is crucial even if you remarry. Remarrying does not automatically sever your financial ties with your previous spouse. Without a clean break order, your ex-partner could still make financial claims against you in the future.

How Do I Know If I Have a Clean Break Order?

If you have gone through a divorce and obtained a clean break order, the document will clearly state the terms of the financial settlement. You should keep a copy of the order for your records, and your solicitor can also provide you with a copy if needed.

Do Both Parties Have to Agree to a Clean Break Order?

Yes, both parties must agree to the terms of the clean break order for it to be valid. If one party does not consent, negotiations may be required, and the court may need to make a final decision on the financial settlement.

Conclusion:

A clean break order in divorce serves as an essential financial agreement that finalizes all financial ties between spouses, granting them financial independence and emotional closure. While it has numerous advantages, such as providing certainty, security, and protection of assets, it also has potential disadvantages, particularly in cases where one party may end up financially disadvantaged. It is essential to consult with a consent order lawyer or a clean break order lawyer to ensure the agreement is fair and legally binding. Additionally, obtaining a clean break order is necessary, even if you remarry, as it fully severs financial ties with your ex-spouse. Ultimately, the decision to pursue a clean break order should be based on the unique circumstances and needs of each divorcing couple.

The court has a duty to consider whether a clean break between the parties is appropriate, when making financial orders. 

Nevertheless, where there are children (especially young children) the court often expects some explanation for a proposed clean break before considering it to be fair.

Agreement is generally a more satisfactory way of resolving a dispute than a court hearing because it avoids ill-feeling and, importantly, it avoids additional costs being incurred.

Court proceedings can be expensive and, given the possibility that the costs, or at least a proportion of them, may be payable by you, an agreed clean break order may very well save you money.

 However, it is important to stress that a clean break order must represent a fair division of the matrimonial property. Agreement should not be made to a clean break order which is considered unfair.

The court will not necessarily approve a clean break order because the parties agree the terms. However, if the order is drafted by competent legal representatives, the court is very likely to approve it and will be “heavily influenced by what the parties themselves have agreed.”

The court’s approach is as follows:

• The court’s jurisdiction to make orders for financial relief derives from the Matrimonial Causes Act 1973
• The court’s function is the same as when making a contested order
• Section 25 of the MCA 1973 prescribes a list of matters to which the court must consider
• The order must be just and fair.

A Consent Order is not just a rubber stamp. However, a judge is under no obligation to make inquiries or require evidence. They are entitled to assume that parties of full age and capacity know what is in their own best interests, particularly when they have legal representation. The court will approve a Consent Order unless it has reason to think there are circumstances that should be reviewed.

The following (inexhaustive) list represents the financial orders that feature in most consent orders:

• Financial provision, including periodical payments, secured periodical payments and lump sums
• Property adjustment, including transfer of property, settlement of property and variation of settlement orders
• Orders for sale of property
• Pension sharing.

The court also has the power to make interim financial orders such as maintenance.

The Court charge a fee of £50.00 for a Consent Order application