If you and your spouse/partner want complete financial separation and independence following the breakdown of your relationship, then you will need a clean break consent order.
A clean break consent order is a legally binding agreement reached by both parties to a divorce or dissolution which provides a “clean break” between you and your ex-spouse/partner. It confirms that neither party wishes to make financial claims against the other in the future.
The intention behind a clean break consent order is that it provides finality. It allows both parties to move forward and to be financially independent of one another.
What is the difference between a consent order vs a clean break consent order?
A consent order is a legal document entered into by both parties (by consent) which formally records the details of a negotiated financial agreement reached between them. The consent order makes the terms of the financial agreement legally binding.
A clean break consent order is a court order that includes a “clean break” element in the Order. The clean break element legally cuts financial ties between you and your former partner. Once a clean break order is made, neither party to the marriage/civil partnership will be able to make further financial claims against the other person. This means there can be no further claims for maintenance, lump sums, pension orders or for property.
It is important to note that if the parties’ have children, a clean break order does not remove the obligation to pay child maintenance. Child maintenance payments are required by law and are usually paid until the child is 16 years of age (increasing to 20 years of age if the child is in approved education or training). If the parties can agree child maintenance, this can then be incorporated into the consent order.
What is a clean break order in a no fault divorce?
It is important to remember that divorce (including a no fault divorce) does not automatically end your financial commitments to each other even once the Final Divorce Order has been made. It is quite possible to get divorced without agreeing any of the financial arrangements – although we would not recommend this.
You should always consider getting a consent order as part of your divorce. It is the only way to guarantee a clean break between you and make any financial agreement you have reached legally binding and enforceable. Without a clean break consent order you could have a future claim made against you for any inheritance, business success or financial windfalls at any point, even many years after your divorce has finalised.
At the end of this article, we have included the Supreme Court decision of Wyatt v Vince which granted a wife permission to make a financial claim against her former husband, over 30 years after the couple separated. This resulted in the wife receiving a lump sum order of £300,000 payable by the husband in full and final settlement of her financial remedies application, together with costs orders totalling circa £325,000!
The cautionary tale of Wyatt v Vince clearly demonstrates the importance of securing a financial order on divorce and the catastrophic consequences of failing to do so even after decades of separation. The only way to sever the financial ties following a divorce is to get an order from the Court either by agreement in the form of a clean break consent order, or by a Judge making the clean break Order.
What are the advantages and disadvantages of a clean break order?
The main advantage to obtaining a clean break consent order is that it gives you security and protection against any claims by your ex-partner in the future. Having a clean break means that from a date specified in the clean break consent order neither party to the marriage/civil partnership will be able to make further financial claims against the other person. This means there can be no further claims for maintenance, lump sums, pension orders or for property.
The recent case of Hat v LAT demonstrates why it is essential to sever financial ties between spouses or partners. In that case an ex-wife was able to pursue her financial claims 29 years after separation and financial matters being agreed in a Separation Agreement.
The main disadvantage is where one party has a very limited income and/or has children living with them. In such a case a clean break as to spousal maintenance may not be appropriate.
In such cases it may be possible to defer the clean break or capitalise maintenance payments.
There are basically 3 types of clean break:
Immediate clean break – This is where all claims for maintenance, pensions, lump sums, and property are immediately dismissed.
Immediate clean break where future maintenance payments are capitalised – This will achieve an immediate clean break, but only after future maintenance payments have been paid in advance.
Deferred clean break – The clean break will happen at a defined point in the future, for example, when the youngest child is 18 or finishes school, or perhaps after a specified number of years, during which time it is anticipated the receiving party will be able to find a job and be able to support themselves.
Other frequently asked questions
Is a clean break order the same as a financial order?
Clean break orders are a type of financial order. In divorce, a financial order specifies how your assets will be divided. If the order contains a ‘clean break clause’, then it is referred to as a ‘clean break order’.
Who applies for the clean break order?
Either party to the marriage or civil partnership can apply to the Court for a financial remedy application, or the Order can be made by consent.
Do both parties have to agree to a clean break financial order?
No, a Court can order a clean break as part of Financial Remedy proceedings. Alternatively, a clean break can be agreed by consent and included into a consent order.
What happens if my ex won’t sign clean break order?
If your ex won’t voluntarily sign a clean break order, you can apply to the family court for a Financial Remedy Order. This will involve paying a court fee, providing financial disclosure, and attending various hearings before a decision about your finances is made by a Judge.
Alternatively, we can help you reach a financial agreement with your ex – which is far more cost effective than having a Court battle.
Can I draft my own consent order?
It is usually best to get expert legal help to prepare your consent order as each Order is different depending on the agreement reached and your personal situation. A consent order must be drafted in a specific form with all the necessary legal provisions to protect you and to prevent any future claims being made. Without expert knowledge it is very easy to draft an Order that may not provide all the legal protection you seek or have agreed.