Divorce may end the marriage, but it does not end the financial rights of spouses. To do that requires a ‘clean break’ order.
What is a clean break order?
It is all too easy to forget that a financial settlement following divorce does not necessarily end financial ties between the estranged couple. Despite the settlement, the ex-husband or wife may respond to changing circumstances with new financial claims years after the divorce, putting both current and future assets at risk.
But there is a solid way to protect your wealth from such claims: a clean break order. This is a legally binding court declaration permanently ending all financial ties between the former couple. Therefore, when a clean break order is in place, neither party can make future claims against the other. It is important to note, however, that such orders do not apply to child support obligations, which cannot normally be ended until the child in question completes secondary education and reaches adulthood.
In other words, although it may not feel like there can be a ‘clean break’ when there is ongoing child support, a ‘clean break’ only refers to spousal rights which can be dismissed by agreement. If you have children who have not finished education, there may be an ongoing obligation to provide a level of financial support for that child. By contrast, the rights of adults, both present and future can be terminated.
What a clean break really means
That is what the term ‘clean break’ really means. With one in place dismissing all the rights that came from the marriage (including property rights), the couple can go forward without looking over their shoulders to see if their former spouse is planning a claim for a further share of their capital, income or pension.
All of the assets at the time of this new application will be considered by the court, even if the financial situation is very different from when former couple were divorced.
Without a ‘clean break’ order by contrast, there is always the possibility that a former spouse who has fallen on hard times, feels resentful or who is just greedy, may re-open financial arrangements and ask a family court to take a fresh look at the divorce finances. This legally termed making an application for a ‘financial remedy’.
The importance of legal advice
If a divorcing couple do choose, perhaps on legal advice, to pursue a clean break, it will be incorporated into their overall financial order using specific wording. Clean breaks must be agreed to by both parties, and approved by a family court. Family court judges may not approve proposed clean break orders if they believe they are not appropriate for a particular family’s circumstances, so legal advice at an early stage is important.
Even if one party agrees to provide financial support for a limited time, that can still form part of a ‘clean break’ order. Such arrangements are referred to as ‘deferred clean breaks’ as the termination of rights of support is delayed for a specified period.
What is a consent order?
Once approved by a court, the financial settlement reached by a divorcing couple is made into a legally binding ‘consent order’, so named because both parties have consented to the agreement set out in the document. They are agreed and not imposed on the spouses and the judge must be satisfied that they are fair as well. There must be ‘informed consent’ to the order.
A court can order a clean break if it is called on to consider finances after a divorce but most clean breaks are part of the initial consent order, when the spouses have their agreement approved by a judge and thereby made ‘final’. There is a process for having the agreement approved by the court and made into a legally binding order.
Informal agreements
It is most unusual for final court orders to be re-opened, unlike informal agreements which will be considered and evaluated against various legal criteria before they are upheld, even if the claim is many years after divorce. A court order cannot easily be challenged and the starting point is that it should be upheld – it is very difficult to re-open an order years later. By contrast, an informal agreement does not prevent a later application to the court and it can be expensive to defend against an unwarranted ‘second bite of the cherry’.
Major Family Law has many years’ experience of framing financial settlements in a way that facilities their conversion into court orders. We provide our clients with finality and peace of mind.
How do I apply?
Major Family Law are the north east’s leading boutique family law firm and can provide you with the advice and representation you will need throughout every step of your divorce. We can apply to a judge for a clean break or consent order on your behalf.
If you are unable to apply for a clean break order, or the Judge rejects your application (for example, if your partner cannot work due to caring for your children she will require spousal maintenance), there are a multitude of alternative financial solutions available. You can discuss these with your Major Family Law divorce solicitor. Get in touch today for your FREE 45-minute initial consultation with a leading north east family law firm.
Getting divorced is complicated, and money is extremely sensitive in these circumstances. Our friendly and compassionate team of divorce solicitors can help take away the pressure and strain. They will provide you with the expert legal advice that you need when looking at your future financial situation. Please call 01661 824582 today for help with a clean break order application, along with support throughout the entire divorce process.
