What is a Clean Break?
A clean break usually refers to a Financial Order that sets out that, once the Order comes into force, neither party will have to pay the other anything by way of a lump sum or maintenance. This therefore allows you to move on with your respective lives free from any financial ties to your former partner. The obligation to pay child maintenance isn’t affected by a clean break Order.
Why is a Financial Order Important?
It’s possible to divorce without dealing with the financial aspects of the relationship coming to an end. However, the danger of this is that, in the future, either of you could potentially be able to apply to Court for financial support from the other. This could either be in the form of maintenance or a lump sum. The only way to be sure that this will not be possible is to obtain a clean break Financial Order from the Court.
Is a Clean Break Right For You?
A clean break provides certainty, but it isn’t right for everyone. A clean break means exactly what it says on the tin – that you’re giving up your right to spousal maintenance now and in the future. Therefore, you need to be sure that you can cope without maintenance in the future. Once there has been a clean break it’s not possible to change your mind and decide that you do need maintenance after all.
The effect of a clean break order is that the finances will remain as they stand at the time the Order becomes binding. This overrides any other agreement you may have made between the two of you. Therefore, if you and your spouse / civil partner have agreed that you’ll both sign this document, but have verbally agreed something different, you should not be signing the draft Consent Order.
Once you’ve signed the draft Consent Order and, particularly once it has been sealed by the Court, it’s very difficult to undo it. Therefore, this isn’t something that you should do lightly.
Nominal Maintenance Order
Some judges are reluctant to grant a clean break Order where there are very young children. Instead they would prefer for there to be a Nominal Maintenance Order. This would be where you would receive a nominal level of maintenance (for example £1 a year). The effect of this would be that, if in the future you needed maintenance, you would be able to make an application to Court for the maintenance to be increased. It, therefore, acts as a safety net but, of course, doesn’t provide certainty to the party paying the maintenance
Can You Transfer Assets Between the Two of You Before Obtaining a Clean Break?
The more complicated your finances are, the more sensible it is to obtain legal advice. However, if you’re considering a simple balancing of assets (for example, one of you pays the other a lump sum of money so that you’re left with the same level of assets) there are two ways that this can be dealt with.
1. Divide your assets before completing the draft clean break order.
You can divide your assets between the two of you before obtaining a clean break. However, you must make sure that you keep a note in writing of who received how much and why.
This note could be in the form of a simple exchange of e-mails saying, for example: “We have agreed that, because our respective savings have been built up during the marriage, we will equalise our assets before obtaining a clean break. I currently hold £7,000 of saving and you hold £3,000. Therefore, I will transfer £2,000 to you so that we are both left with £5,000”. Obviously, you need to wait for confirmation in an e-mail or in writing otherwise there will be no evidence of an agreement on both sides.
The evidence of this agreement would be useful if one of you were to argue at a future date that a lump sum received was entirely independent of the clean break.
2. Include the background to the agreement in the recitals
The other option you have is to refer to any payments you have made in the Order itself.
A Consent Order is divided into two sections. The first section sets out the background to the order and is called the recitals. This can help the Judge understand why you’re asking for a clean break and why it is appropriate.
The second section includes what you’re asking the Court to order (i.e. a clean break).
To be sure that there can be no misunderstanding of the basis of the agreement you’ve reached, you could put any agreement into the recitals. This could be as simple as saying: “It is agreed by the Petitioner and the Respondent that the Petitioner has paid the Respondent £5,000.”
Bear in mind that, swapping assets in advance of obtaining an order does require a certain amount of trust. It could get messy if you transferred assets and then one of you refused to sign the Order.
If there is a lack of trust or in more complicated situations, it would be agreed that the money would be paid once the Order becomes binding. In those circumstances your Order will need to be drafted by a solicitor.
What Forms Should You Complete to Obtain a Clean Break?
There are two standard Court forms that you will need to complete in order to obtain a clean break. The first one is the Form A, which makes your Financial Application. The second is Form D81, which provides a summary of your and your partner’s respective financial positions to the Judge who will consider your draft Order requesting a clean break.
In addition you need to provide a draft Order. Unfortunately, there is no standard Court form for this. That is why, even if your finances are very simple, it can work out quite expensive to see a solicitor and for them to prepare a very simple clean break order for you. Alternatively, you can use the Divorce Easily Guide to Obtaining a Clean Break, which contains a draft clean break order for you to adapt.
How Much Does a Clean Break Cost to Obtain?
This will depend upon whether you use a solicitor or not. If you use a solicitor their fees will depend upon:
- Where they’re located (a solicitor in central London is more expensive than a solicitor in other areas of the country);
- How long they’ve been qualified, and;
- How much advice they give you.