For many divorcing couples, a clean break represents the ideal conclusion and allows them to move forward without the possibility of an application for spousal maintenance or a claim against wealth acquired years later.
However, a clean break is not suitable in every case, and where one spouse cannot meet their reasonable needs, the family still depends upon a shared asset, or the future financial position remains uncertain, some continuing financial connection may be unavoidable.
What does a clean break actually mean?
A clean-break order dismisses the financial claims that one former spouse could otherwise bring against the other in the future. Depending upon its wording, it may prevent later claims for income, capital, property, or pension provision. It may also dismiss claims against the other person’s estate after death.
Divorce itself does not produce a financial clean break. Even where a couple has divided their possessions informally and neither expects anything further from the other, it is usually sensible to have the agreement recorded in a consent order. The court will consider whether the proposed terms are fair before approving them.
The court is required to consider whether it would be appropriate to end the parties’ financial obligations as soon as the court considers just and reasonable. That does not mean a clean break must be ordered in every case. Where immediate independence would leave one spouse unable to meet their needs, the court may decide that continuing financial provision is necessary.
A substantial difference in income may prevent an immediate clean break
A clean break is more achievable where both spouses earn enough to support themselves and have suitable housing. Difficulties arise when one person’s income and earning capacity are considerably lower than the other’s.
Simply dividing the available capital may not solve the problem, and if most of the family’s wealth is tied up in the home, there may be insufficient money to provide both parties with housing while also giving the lower earner a fund capable of replacing maintenance. In those circumstances, the court may order spousal maintenance for a fixed period or, less commonly, on an open-ended basis.
A fixed-term order might allow the receiving spouse time to retrain, increase their working hours, or adjust to financial independence. The court can sometimes prevent an application to extend the term, creating certainty about when payments will stop. In other cases, an extendable term may be necessary because it is not yet clear when independence will become realistic.
Young children can affect financial independence
Children’s needs are a central consideration when financial arrangements are decided. The court must give first consideration to the welfare of any child of the family who is under 18, although this does not mean that every parent caring for young children will receive spousal maintenance.
The practical arrangements may nevertheless make an immediate clean break unrealistic. A parent caring for a baby or a child who has only recently started school may be unable to work full time. Childcare costs may absorb much of the income they could earn, while employment that fits around school hours may be difficult to find.
The court will usually expect a person to take reasonable steps towards independence when that is possible, but it should not rely upon an unrealistic assumption that their earnings will suddenly return to their former level. Maintenance may therefore be needed during a transitional period.
Child maintenance is separate from spousal maintenance, and a clean break between former spouses does not remove a parent’s responsibility to support their children. Child maintenance is generally dealt with separately, often through an agreement or the Child Maintenance Service, and the amount may change when income or care arrangements change.
Housing needs may keep former spouses financially connected
Sometimes there is enough income to support two households, but not enough capital to purchase two suitable homes. This is particularly common where children need to remain close to their school or where one spouse would find it difficult to obtain a mortgage.
The court might postpone the sale of the family home, allowing one spouse and the children to remain there until a specified event occurs. Common trigger events include the youngest child reaching a particular age or completing secondary education, although the appropriate terms depend upon the family’s circumstances.
A deferred sale can provide stability for the children, but it leaves the former spouses connected through the property. Questions must be addressed about responsibility for the mortgage, insurance, repairs, and other outgoings. The spouse who has moved out may also remain named on the mortgage, reducing their ability to borrow for another home.
That said, this does not always prevent a clean break in relation to income. An order may settle or dismiss other financial claims while preserving each party’s interest in the property until it can be sold. The drafting needs care because continuing ownership of a shared asset is not the same as leaving every financial claim open.
Fluctuating or uncertain income may make settlement more difficult
Not everybody receives a predictable monthly salary; business owners, freelancers, commission-based workers, and people whose salary includes discretionary bonuses may have income that changes significantly from year to year.
A clean break based upon one unusually good or bad year could be unfair. The parties may need to examine several years of accounts, tax returns, and salary records to identify an appropriate income figure. The position becomes more complicated when a business is new, recovering from financial difficulty, or dependent upon a small number of contracts.
Uncertain income does not automatically prevent a clean break. The court may use an average figure or take a cautious approach to future earnings; it may also prefer a fixed maintenance payment that is affordable during an ordinary year rather than attempting to divide every future bonus.
In some cases, however, the uncertainty is too significant to resolve immediately. A spouse who cannot meet their needs from existing capital may require maintenance even though the precise amount of the other spouse’s future income is unclear. The order might include provision for review or variation, although this carries the risk of further disagreements and legal costs.
A very short marriage does not always guarantee a clean break
A short marriage will often make a clean break more likely, particularly where the parties are financially independent, have no children and can broadly return to their pre-marriage positions.
However, even a short marriage may still have lasting financial consequences. One spouse might have given up secure accommodation, relocated, left employment, or become the main carer of a young child. A serious illness or disability may also have developed during the relationship. In such a case, the court cannot disregard genuine needs simply because the marriage lasted only a few years.
On the other hand, a long marriage does not automatically require continuing maintenance. If the assets are sufficient to house both parties and provide each with a reasonable income, a clean break may remain achievable despite the length of the relationship.