What is a clean break order?

The primary purpose of a Clean Break Order is to provide financial finality. Without such an order, former spouses can still make claims on each other’s property, inheritance, or any future financial gains, like a lottery win, many years after the divorce. This means that unless the court issues a clean break order, the possibility of future claims remains.

Factors the Court Considers

The court must seal any financial consent order. When deciding on a Clean Break Order, the Court has wide discretion to make orders that best suit an individual family’s circumstances. The welfare of any children under 18 is given primary consideration. However, Section 25 of the Matrimonial Causes Act 1973 sets out specific factors the Court must consider (referred to as the Section 25 factors):

• Income and Earning Capacity: Each person’s income, earning capacity, property, and other financial resources available now and in the foreseeable future.
• Financial Needs and Obligations: Each person’s financial needs, obligations, and responsibilities currently and in the foreseeable future. This will include need for housing and income to meet outgoings, including providing for children.
• Standard of Living: The standard of living enjoyed by the family before the marriage breakdown. This can affect the overall outcome. 
• Age and Length of Marriage: The ages of the parties and the duration of the marriage or civil partnership.
• Disability: Any physical or mental disability of either party.
• Contributions: Contributions (not just financial) made or likely to be made in the foreseeable future to the welfare of the family, including homemaking and childcare.
• Conduct: The conduct of each party, if it is such that the Court considers it would be unfair to disregard it. However, it is rare for conduct to be considered unless it directly affects finances.
• Loss of Benefits: The value of any benefit either party will lose the chance of acquiring as a result of the divorce.

Court’s Approach to Division

The Court applies a general guide of a 50:50 division of matrimonial assets. However, the Court can depart from this to achieve fairness, subject to the length of the marriage, or if one party’s needs dictate a greater share. Pre-nuptial or post-nuptial agreements can also significantly influence the Court’s decision.

When a Clean Break Order is Not Appropriate

While a Clean Break Order provides financial finality, it may not be suitable in all situations. For instance, if one party has a limited income and relies on spousal maintenance, a clean break might not be fair or feasible. This is particularly the case where there are young children or one party has been out of the workforce for an extended period, ongoing financial support may be necessary. In such cases, keeping spousal maintenance claims alive can provide a valuable safety net for the lower-earning or non-earning spouse.

A Clean Break Order provides financial certainty and finality, allowing both parties to move forward independently. It is crucial to seek legal advice to ensure that the settlement is fair and that your interests are protected.