What is a clean break order and how do they apply to separating couples?

Divorce is an extensive process and can affect many different areas of both parties’ lives, especially their financial lives.

One term often heard is aiming for a “clean break”, and whilst many believe this refers to a simple and easy separation, it can also refer to a Clean Break Order.

What is a Clean Break Order

A “clean break” is an order from the court severing all financial ties between a previously married couple. This acts as a complete financial separation between the ex-couple and enables both parties to the marriage or civil partnership to move on freely and independently, in the knowledge that their former spouse or civil partner cannot seek to make any further financial claims against them in the future.

These orders can only be obtained once divorce or civil partnership dissolution proceedings have been completed. They can be granted by consent when agreed or imposed by the court, where considered appropriate in the absence of agreement.

Is a clean break favourable?

Wherever possible and appropriate, the court will strive to achieve a clean break, as it provides a great amount of closure and peace of mind. Many people do not realise that, even after a divorce is concluded, former spouses or civil partners can still make financial claims against each other, even many years later (there are no time limits), unless there is a formal clean break.

For this reason, a clean break is the best possible way to protect any future gains, such as lottery wins or future inheritances. Those contemplating making provision by way of a will for their divorced children might want to check that their children have obtained a clean break, to protect against the possibility of inheritances falling into the wrong hands.

It is important to note that a clean break only applies between the parties to the marriage or civil partnership and not to any children. A clean break does not affect a parent’s legal obligation to pay child support, and any attempt to restrict such a liability would be regarded as contrary to public policy.

Of course, there are some situations where a clean break isn’t possible or appropriate. There can’t be a complete clean break whenever one person has an ongoing maintenance obligation to the other (spousal maintenance). Wherever there is an ongoing liability, financial ties cannot be severed, although it might sometimes be possible to capitalise the maintenance obligation and thereby “buy” a clean break.

Is a clean break right for me?

This will depend on many factors, and every situation needs to be considered carefully, weighing up the various pros and cons. One potential disadvantage of a clean break is that it is final, meaning there is no flexibility and no possibility of seeking further financial assistance in the event of changed circumstances, such as ill health or loss of employment.

We would always recommend that anyone contemplating divorce seek legal advice regarding financial matters, including whether a clean break would be appropriate.

How do I obtain a clean break?

A clean break is only available to couples who are in the process of, or have completed, either a divorce or a civil partnership dissolution.

When couples have agreed on financial terms, including a clean break provision, an application can be made to the court inviting it to make an order by consent, reflecting the terms of the agreement and bringing about the clean break.

The procedure for this is relatively straightforward and inexpensive, although couples are likely to require legal advice and assistance with preparing the necessary paperwork.

In the absence of agreement, an application would have to be made to the court via the non-consensual route. Such proceedings can be costly. Ultimately, if no agreement is reached along the way, a judge would determine whether a clean break is appropriate and, if so, impose one.