Skip to main content
« Back to Blog

When is a clean break not a clean break?

It sounds simple enough….. you go your way and I go mine and neither of us have any further obligation to the other, financial or otherwise.

However, many couples assume that getting divorced not only ends the contract of marriage but that it also severs financial ties between you.  This is not the case.

Agreeing a financial settlement is one thing but unless you enter into a formal agreement, known as a Consent Order, which includes a clean break clause your former spouse could make a claim on your assets, property, income or pensions at any time in the future.

A Consent Order is a document that sets out the financial agreement you have reached at that time.  It is the ‘clean break order’  that formally dismisses your right to ask for further money from each other in the future.

Without a clean break order in place if you win the lottery, receive an inheritance, or simply get a better job and start earning more, your former spouse may be able to claim a share of your new found wealth even after you are divorced.

Unfortunately, many people do not believe their particular situation is complicated enough to enter into a formal Consent Order and simply agree to sort out matters between themselves. Some people later find themselves in the difficult position of having to deal with new ‘claims’ many years after their divorce or separation.  Even if these new claims are ultimately unsuccessful, without the clean break order in place you potentially still have the inconvenience and expense of having to deal with a court application.

It is not always possible to achieve a clean break in every case.  Sometimes maintenance will continue to be paid by one spouse to the other, particularly in a case where there is a long marriage and a significantly reduced earning capacity of one spouse as a result of this.

This does necessarily mean that you cannot have a clean break but it will not be immediate.  In some cases the clean break is deferred to a later date and there will be a binding order that provides for a clean break when certain conditions have been fulfilled.

Where the circumstances are too uncertain for a clean break order, it might be necessary for certain claims to remain ‘alive’ until the position becomes clear. If you believe that your income is likely to significantly decrease or you think your former spouse’s income or assets may increase in the near future then it may not be in your interests to have a clean break order at all.

Where it is fair and it is possible, the court has an obligation to make a clean break order to achieve a fair and final resolution of financial disputes between both parties.

When getting a divorce you should always take advice on the severing of any financial ties an on any agreement you may have reached with your spouse.

By Lisa Burton-Durham