Clean break order in divorce

Clean break order:

A clean break order is a type of financial order made on divorce (or dissolution of a civil partnership) which ends all financial ties between the former spouses, so that neither party can make any further financial claim against the other in the future. It is provided for under section 25A of the Matrimonial Causes Act 1973, which imposes a duty on the court to consider whether it is appropriate to bring financial obligations to an end as soon as is just and reasonable.

What it does:

A clean break order severs the ongoing financial relationship. Once it takes effect, neither spouse can return to court to seek maintenance, a share of the other's pension, a lump sum, or any other financial provision. It draws a firm line under the financial consequences of the marriage. It does not, however, affect obligations to children, which are dealt with separately and cannot be dismissed by agreement between the parties.

A clean break can take different forms. It may involve no financial orders at all, simply dismissing all claims. More commonly, it involves a package of capital orders, such as the transfer or sale of the former matrimonial home, a lump sum payment, or a pension sharing order, accompanied by the dismissal of all remaining claims, including spousal maintenance. The key defining feature is that once the order is made and implemented, there is nothing left to argue about financially.

When it is suitable:

A clean break is generally considered suitable when both parties are able to meet their own financial needs independently going forward. The court will look at the section 25 factors, including the parties' incomes, earning capacity, financial resources, needs, standard of living, ages, duration of the marriage, contributions, and any disabilities.

It tends to work well in the following circumstances:

1. Both parties are working and financially self-sufficient.
2. There are sufficient capital assets to divide so that each person's housing and other needs can be met.
3. The marriage was relatively short and there is no significant financial dependency.
4. There is enough in pensions or other assets to achieve a fair division without the need for ongoing payments.
5. Both parties simply want certainty and closure.

When it may not be suitable:

A clean break is not always achievable or fair. It may be inappropriate where one party has significantly lower earning capacity, particularly after a long marriage where one spouse gave up a career to care for children. It may also be unsuitable where there are young children and the primary carer cannot work full-time, or where a party has a health condition that limits their ability to become financially independent.

In those cases, the court may order periodical payments (spousal maintenance) for a defined period or even on an open-ended basis, with the option to revisit the position later. A deferred clean break is sometimes used, where maintenance is ordered for a fixed period to allow the recipient time to adjust and become self-sufficient, after which all claims are dismissed.

Why it matters even when agreed:

Even if both parties agree to a clean break, the agreement is not binding unless it is recorded in a consent order and approved by the court. Without a court order, either party retains the right to bring a financial claim against the other at any point in the future, potentially many years after the divorce. The well-known case of Wyatt v Vince (2015) illustrated this risk, where a financial claim was brought more than 18 years after the divorce. A properly sealed clean break consent order prevents this.

Practical points:

If you are considering a clean break, the essential starting point is full and frank financial disclosure by both parties. Neither party can properly agree to, or the court properly approve, a clean break unless the full financial picture is clear. This is usually done by exchanging Forms E or, by agreement, a less formal but still comprehensive disclosure.

Even where both parties agree on the terms, it is strongly advisable to have the consent order drafted properly and submitted to the court for approval. The court fee for a consent order is modest and the protection it provides is significant.

If one party is reluctant to agree to a clean break and the other believes it is appropriate, the matter can be determined by the court at a final hearing, but the cost and complexity of contested financial proceedings should be weighed carefully before going down that route.