A Clean Break Order is often seen as the gold standard for those seeking a fresh start after divorce or dissolution in England and Wales. It brings a sense of closure, drawing a clear line under financial ties between former spouses. But is it always the right choice? The reality is more nuanced, and understanding the subtleties can help you avoid common pitfalls and make informed decisions.
What Is a Clean Break Order?
A Clean Break Order is a type of financial order made by the family court under the Matrimonial Causes Act 1973. It ensures that, once the order is made, neither party can make further financial claims against the other in the future—whether for income, capital, or pensions (unless specifically excluded). This includes claims for spousal maintenance, lump sums, property adjustment, and even inheritance from the other’s estate.
The Advantages: Certainty and Closure
The main appeal of a clean break is certainty. Once approved, both parties know exactly where they stand. There’s no risk of a claim years down the line, which can be especially important if you plan to remarry, buy property, or simply want peace of mind.
No future maintenance claims: This is particularly attractive for those who want to avoid ongoing financial entanglement.
Financial certainty: Both parties can plan for the future, knowing their obligations and entitlements are settled.
Mortgage and credit: Lenders often look more favourably on applicants with no ongoing maintenance liabilities, making it easier to secure a mortgage or other credit.
Potential Risks: When Finality Isn’t Always Fair
Despite the appeal, a clean break isn’t always appropriate. The court’s primary concern is fairness, and a clean break must not leave one party in genuine financial hardship. Here are some common risks and ambiguities:
Insufficient capital: If the available assets are limited, a clean break may not provide enough to meet both parties’ needs, especially if one has sacrificed career prospects or has caring responsibilities.
Future uncertainty: Life is unpredictable. Illness, redundancy, or other misfortunes can strike after the order is made. With a clean break, there’s no going back to ask for more support.
Pensions: Pensions are often overlooked. If one party retains a valuable pension and the other receives only immediate capital, this can create long-term imbalance, especially as retirement approaches.
Child maintenance: A clean break cannot dismiss child maintenance obligations. These remain separate and can be revisited if circumstances change.
Common Pitfalls and Contentious Points
Non-disclosure: Full and frank disclosure is essential. If one party hides assets or income, the clean break can be challenged later. The case of Bride v Bride [2023] EWFC 95 is a recent example where the court revisited a clean break due to non-disclosure.
Staged payments: Sometimes, a lump sum is paid in instalments. This can blur the line between a clean break and ongoing maintenance, so the order must be carefully drafted to avoid ambiguity.
Timing: Rushing into a clean break before all assets are valued or before pensions are properly considered can lead to unfairness. Take time to gather all relevant information, including up-to-date pension valuations and property appraisals.
Remarriage trap: If you remarry before obtaining a financial order, you may lose the right to apply for certain financial claims. Always secure your clean break before remarrying.
Section 25 Factors: The Court’s Checklist
The court must consider the Section 25 factors of the Matrimonial Causes Act 1973 when deciding whether a clean break is fair. These include:
The income, earning capacity, property, and other financial resources of each party.
The financial needs, obligations, and responsibilities of each party.
The standard of living enjoyed during the marriage.
The age of each party and the duration of the marriage.
Any physical or mental disability.
Contributions made by each party to the welfare of the family.
The conduct of each party (in rare cases).
The court will only approve a clean break if it is satisfied that these factors have been properly considered and that the order is fair to both parties.
Practical Tips for Self-Representing Litigants
Be thorough with disclosure: List all assets, debts, income, and pensions. Incomplete disclosure can lead to the order being set aside.
Consider future needs: Think about housing, retirement, and potential changes in circumstances.
Use clear language: If you agree to staged payments, specify the amounts, dates, and what happens if a payment is missed.
Don’t overlook pensions: Obtain a cash equivalent value (CEV) for all pensions and consider whether a pension sharing order is needed.
Drafting: Use the court’s standard forms and templates, and check that the order covers all relevant claims (income, capital, pensions).
Case Law Spotlight: Bride v Bride [2023] EWFC 95
This case highlights the importance of full disclosure. The court set aside a clean break order after discovering that one party had failed to disclose significant assets. The message is clear: honesty is not just the best policy, it’s a legal requirement.
Conclusion: Is a Clean Break Right for You?
A clean break can offer peace of mind and a true fresh start, but it’s not a one-size-fits-all solution. Carefully weigh your current and future needs, and ensure all assets are properly disclosed and valued. If in doubt, take your time and don’t rush the process. The court will only approve a clean break if it is fair and reasonable in all the circumstances.
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Disclaimer: This blog post provides general information for educational purposes only. It is not legal advice. Outcomes can vary based on your personal circumstances.
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