Clean Break Divorce

Often as part of financial matrimonial proceedings or even by consent it might be appropriate in the circumstances for a clean break to occur. Each case is different so good advice really helps. Karen Weiner, divorce partner and specialist in our firm, has over 20 years experience and is an ideal choice to get a steer on whether a clean break may be possible for you. Contact Karen for a free initial discussion.

What is a clean break ?

In its simplest form it draws a line under any financial ties between 2 parties, and once the break occurs, neither party can make any further claim against the other. Effectively ending any financial interdependence.

What does the Court consider when deciding whether to impose a clean break ?

The Court applies 4 provisions of the Matrimonial Causes Act 1973 when considering the appropriateness of a clean break:

  • Firstly, whether it is reasonable to expect a party to take steps to acquire a higher and increasing earning capacity;
  • Secondly, the Court considers whether it is just and reasonable in the circumstances for any financial obligations one party has towards the other to be terminated;
  • Thirdly, the Court will consider if the termination of any periodical payments would cause undue hardship.
  • The fourth provision in the Act allows for the Court to dismiss the applicant’s ability to make any future applications in relation to the marriage.

So when is it appropriate to have a clean break ?

An immediate clean break will only be appropriate where both parties, upon financial settlement, are and will continue to be self sufficient.

A clean break is usually not appropriate where there are children and there is a continued obligation on one party to pay spousal and/or child maintenance.

However, if a periodical payments order is made for one party to pay maintenance to the other then the Court or if by consent, the parties, will need to consider how long these payments are to continue. It might be that such payments are limited to a certain time span, at which point the receiving party will be self sufficient. If there is enough evidence to support this then a deferred clean break order may be imposed.

This delay might be 6 months to enable the receiving party to get a job, or for a few years to allow for studies an/or retraining. Or if there are children the term might be a lot longer until the children are less dependent.

It is not usually appropriate to impose a clean break on someone in their late 40’s or 50’s as their earning capacity is quite often limited, there are obviously exceptions if that party has substantial capital assets to sustain them going forward.

It is more likely, however, for there to be an order for nominal maintenance to be ordered or agreed which keeps the spouse’s claim for maintenance ‘alive’ so that in the future it can be varied if necessary.

If the date for the delayed clean break doesn’t seem to be workable in the future then the receiving party would have to make an application for it to be extended, evidence will be needed to show why that person has failed to become self sufficient as initially intended.

Capital clean break

Often a capital clean break is imposed or agreed by way of a lump sum payment from one party to another in return for a complete dismissal of all future claims.

This is either possible if there are substantial capital assets or funds available, or upon the transfer of a business or shares. In the case of the former matrimonial home, it would have to be sold and funds passed from one to the other or the ownership of the property transferred.

Consent Orders and their importance

Be it an order imposing a clean break or not, if parties have come to an agreement in respect of their matrimonial finances without going to Court it is imperative the agreement is detailed and formalised in a consent order. If there are no finances to settle it is important then to at the very least formally dismiss all future claims so as not to leave it open for either party beyond the marriage to make a claim against the other for financial relief. An order provides certainty and formality, and where a clean break is appropriate, draws a line under all elements of the relationship, leaving the past behind and allowing the parties to begin afresh.

Contact us for advice on divorce financial issues or divorce generally. The first meeting or discussion is free of charge.

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