A Clean Break Order is the only way to be sure that after you divorce your spouse, all financial ties a severed
A clean break order is very different to an order that leaves the possibility of your ex-spouse making another financial claim against you in the future. It is really important therefore to know which type of order you have and why.
Before we start, it also very important to keep in mind, what is and what is not covered in the divorce. The divorce itself (the Decree Absolute) does not deal at all with future financial arrangements between you and your ex. Your ex-spouse’s entire range of potential financial claims against you will hang over you forever – or more accurately until a financial order is made.
The only way to be sure that your ex-spouse can never make any future financial claims against you is to get a clean break Order by consent, which severs all financial commitments as husband and wife.
A clean break Consent Order is the Order that the Court makes once the parties have reached a financial agreement. which they then submit to the Court for the Judge’s approval. The clean break Consent Order ends all financial commitments or claims by the divorcing couple against one or another.
What is the difference between a clean break Consent Order and a Consent Order?
A Consent Order is any Order made by the Judge to which both parties have already agreed. In other words, if you both write to a Judge asking him to make an Order (for example if you have used our clean break Consent Order service and we have prepared a clean break Consent Order for you by agreement that has then been sent to the Court) then that is a Consent Order.
A clean break consent Order is sent to the court in the same way, but very importantly it provides for all remaining financial claims between you and your ex to be dealt with in the Order, so that there is no future ongoing financial obligations (or claims) to one another
What are the risks of not getting a Clean Break Consent Order?
If you do not get a financial order, or if your financial order does not include a clean break, then your ex-spouse can at any time in the future come back to Court and try to make a claim for more money against you.
Even if the claim is not successful, it will undoubtedly be stressful to find yourself back in Court. Especially when you thought life had moved on and you had not anticipated or even remembered that this was possible.
A Clean Break Consent order offers you more protection than a Consent Order, which in certain circumstance can prove crucial. For example, if your financial situation has significantly improved, or perhaps your ex-spouse’s situation has substantially deteriorated, you could actually find yourself being ordered to pay him or her more.
Here are two examples of ex-spouses making substantial claims many years after the end of the marriage.
Nigel Page won £56 million in the lottery 10 years after his wife left him for another man. Because he had no Clean Break order, his ex-wife was able to claim £2 million from him.
Dale Vince separated from his wife at a time when they were living as new age travellers and had no money. He went on to build a very successful eco-energy business worth £millions. His ex-wife then made a successful claim against him 30 years later. While these are obviously extreme examples, they highlight the potential danger for every divorcing couple.
How to get a Clean Break Consent Order?
For a clean break Consent Order to be possible, both you and your ex have to reach an agreement, that does not include ongoing spousal maintenance (sometimes called spousal periodical payments). It does not matter if one spouse is paying child maintenance, you can still get a clean break Consent Order then – but if spousal maintenance is being paid, although you can have a Consent Order you cannot have a clean break Consent Order.
A clean break Consent order can still be made even if it includes provision for things like a property to be sold and the sale proceeds to be divided, or even for a lump sum to be paid at a later date.
Will I get a clean break consent order?
Whether a Court approves a clean break consent order for you and your ex-spouse or not depends on both financial and relationship factors. We set out below a list of the most relevant factors – it’s always a balancing act, so the more of the first list you have, the more likely you are to qualify for a clean break consent order.
When can I apply for a clean break order?
The sooner you and your ex can agree on a financial arrangement, you should get it put into a draft order. Our clean break Consent Order service makes this as straight forward as possible.
It is not unusual to find that divorces can start off being amicable but as time passes once spouse or the other (or both) slowly start to feel less friendly towards the other. Overtime things can become more tense dues of the influence of a new partner appearing on the scene. This is one of those things that does not get easier or better if you ignore it for a while. Do your best to reach an agreement with your ex as soon as possible and get it turned into a Court order. This will let you both know where you stand, and allow you to get on with the next chapter of life.
A Court is more likely to approve a clean break consent order if:
- You and your ex-spouse are both in paid work.
- You do not have any children under 15
- Your marriage was 'short' (considered by the Court to be less than 5 years).
- The financial agreement you have reached does not include spousal maintenance payments.
- The financially weaker party (often, but not always, the wife) has enough financial resources to meet her own income needs.
- You are both retired.
A Court is less likely to approve a clean break consent order if:
- The agreement with your ex-spouse means one of you is paying spousal maintenance to the other (but see our note below about 'capitalisation')
- You have children under 10 (and the younger they are, the less likely it is)
- There is great uncertainty about some financial event in the near future (eg a substantial amount of money is expected to arrive shortly, but might not)
Capitalisation, as a way to get a clean break order
One final thing to explain is ‘capitalisation’, which is another way of getting to a clean break. Let’s say that your agreement is that you pay your ex-wife spousal maintenance of £5,000 for four years. If that is put in an order, it is not a ‘clean break’ consent order (although it is still a consent order) because the spousal maintenance means financial connection for another four years and either of you can apply to the Court in that time to change the amount of maintenance (up or down) or the number of years it is paid for. Uncertainty for everyone.
An alternative agreement, could be to pay your ex-wife a lump sum of £20,000, replacing the spousal maintenance going forward. This would be a clean break: no financial dependency going forward and no uncertainty. Obviously, this agreement would have to be added into the Clean Break Consent Order.
There are positives and negatives to such a clean break by way of capitisation – both for the payer and payee. In general terms, a clean break is said to be virtually always the best choice of outcome if it is affordable – and a court is positively required to consider whether it can be achieved in each case before it.
Seven reasons for having a clean break Consent Order
- A Consent Order means that you must have agreed that outcome with your ex-spouse and therefore it is presumably a solution that you feel that you can live with. This is much more preferrable than having something that a Court has imposed upon you
- A Consent Order also means that as you haven’t dragged yourself through litigation from beginning to end, then you will have saved a great deal of money that would otherwise have been wasted on lawyers.
- A clean break Consent Order means that both you and your ex-spouse can be 100% certain that no further financial claims can be made against you, or the amounts you have received be reduced etc.
- For the person that would otherwise have paid spousal maintenance (but instead has paid a larger lump sum), there is a certainty of knowing that even if your income changes in the future, there is no danger of your ex-spouse applying to increase the maintenance payments.
- For the person who would have otherwise received spousal maintenance (but instead received a larger lump sum) there is the certainty of knowing that whatever happens in the future, your finances will not be affected. For example, a spousal maintenance order automatically terminates if you remarry; or, as another example, if the payer loses his job or has a significant reduction in income, your maintenance payments might be stopped or severely reduced. A clean break Consent Order eliminates any such concerns.
- A ‘clean break’ means that your ex-spouse cannot make a claim against your estate if you die (which otherwise is a possibility).
- A clean break Consent Order also probably means that your ex-spouse and you are able to negotiate an agreement and therefore you will have saved a great deal of emotional energy and avoided a lot of negativity that come with fighting your ex-spouse in divorce proceedings. If you have children, remember you are likely to have to co-operate on a whole range of matters (including wedding seating arrangements!) and so the less friction between you for the future the better.