What is a clean break in a divorce?

Year Published: 2022

The term ‘clean break’ relating to divorce is one that we use frequently in family law, but what does it actually mean and would it be appropriate in your particular circumstances?

A clean break essentially means that separating parties walk away from the marriage with no financial obligation towards the other. This means that you would no longer be liable for any debts your spouse has and you would not have to pay ongoing maintenance to provide financial support.

In what circumstances would a clean break be suitable?

Example 1

Michael and Mary are both 40 years old and have been married for three years; there are no children of the marriage. There is equity in the region of £150,000 in the family home and both parties have reasonable income from full time employment. They both have borrowing capacity and have agreed to split the sale proceeds equally.

In this case, we would be in agreement that a clean break is suitable. Both parties have enough income to afford mortgage repayments and there is enough equity available to provide them both with a lump sum towards their new homes. Neither is reliant on the other to be able to manage monthly expenditure and they both are able to live financially independently.

Example 2

Nathan and Sarah have been married for 2 years. They lived in a rental property and there are no joint assets except for a joint bank account which had been utilised to make rental payments and to cover bills.

In this case, there are no assets to divide and therefore a clean break would be appropriate. Although there are no assets to divide, we would advise drafting a clean break order to submit to the court once a conditional order has been obtained to sever all financial ties between the parties. This will give both parties peace of mind that there can be no further claims made as a result of the marriage in the future.

It is important to note that, without a clean break order, financial claims can be made long after the final divorce order has been obtained even if the financial circumstances have changed.

Example 3

Sally and Andrew were married for 6 years and separated in February 2018. Their divorce was finalised in July 2019. The parties dealt with the financial matters themselves with the family home being sold and the proceeds being divided equally between them, however there was no financial order approved by the Court. In March 2021 Andrew receives an inheritance of £500,000. As the parties have failed to sever the financial ties it may be possible for Sally to make a claim on this inheritance. If the parties had entered into a clean break order at the time the divorce was finalised, she would not be able to do this.

When would a clean break not be suitable?

We would advise against a clean break where it is apparent that one party is in need of spousal maintenance either as a short-term provision or longer term.

Spousal maintenance is usually ordered in cases where one party earns significantly less than the other or has not been in work for a number of years whilst raising the children of the family. If this is the case, it would be difficult for this party to start again and be financially independent straight away. It may be the case that the economically weaker party could not obtain employment without going back into some sort of further education or training to update their skills. In this case, maintenance would be appropriate for a couple of years whilst this party gets back on their feet and starts to receive a reasonable income.

In some circumstances, it may not be appropriate for a party to go back to work or to retrain. This may be due to ill health or the party being close to retirement age. If this were the case, then longer term maintenance would be a consideration of the court.

If you have reached agreement with your spouse regarding financial matters and are unsure whether this is a fair and reasonable agreement, we strongly recommend you seek legal advice before signing any documentation.

For further information and guidance regarding obtaining a clean break, or for other family matters, please contact Cheryl Haywood in our family team on 01260 282314 or [email protected] 

 

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