Whether you like it or not, the law is still full of jargon, and family law is no exception. One of the common expressions that anyone involved in divorce proceedings is likely to come across is the ‘clean break’. As with all jargon there are various misconceptions about what exactly a clean break is, and why it is so important.
It probably doesn’t help that the term ‘clean break’ originally had a slightly different meaning. It originally referred to an arrangement whereby the wife gave up her right to claim maintenance, in return for the husband transferring a capital asset to her, usually the former matrimonial home.
Now, however, the meaning of the term is simply a break between the parties to the divorce, such that thereafter neither has any continuing financial claim on the other. That situation arises when the divorce court makes an order dismissing all, or all further, claims of a financial nature by either party against the other. Such an order is usually called a ‘clean break order’, and means that thereafter neither party can apply to the court for any further financial orders against the other.
Note, however, that there cannot be a clean break if the court has ordered one party to make continuing financial provision for the other, by way of maintenance. Until the maintenance ceases, there will be no clean break.
It should also be noted that the clean break does not dismiss financial claims made by or on behalf of any children: a clean break is not possible between a parent and a child.
Obviously there may be situations in which a spousal maintenance order is unavoidable, for example where a wife is at or approaching retirement age and has no significant capital or earning capacity of her own. However, it is generally considered that a clean break is desirable where possible, as it means that the parties are then free to move on with their lives, without any financial obligation towards, or dependency upon, the other.
The desirability of the clean break was recognised by Parliament in 1984 when it passed the Matrimonial and Family Proceedings Act. This introduced an amendment into the existing law on financial settlements on divorce, aimed at encouraging clean breaks. The amendment essentially imposed two duties upon the court when dealing with financial settlements on divorce.
The first duty is that the court must consider whether it would be appropriate to make an order that the financial obligations of each party towards the other will be terminated as soon after the divorce as the court considers just and reasonable. Accordingly, in all cases the court must consider whether or not a clean break is appropriate, irrespective of whether or not either of the parties has suggested it.
The other duty arises where the court decides to make a maintenance order in favour of a spouse. In such cases the court must consider whether it would be appropriate to require the maintenance to last only for such period “as would in the opinion of the court be sufficient to enable the party in whose favour the order is made to adjust without undue hardship to the termination of his or her financial dependence on the other party.” If the court does consider it appropriate it will make the maintenance order for a fixed term, after which there will be a clean break. Such an order may be appropriate, for example, where the receiving spouse needs time to acquire the necessary skills to go back to work.
Finally, to the second question in the title of this post: why is a clean break important? The answer is, quite simply, that unless your spouse has remarried there is always the possibility that they can come back to make a financial claim against you, if the court hasn’t made a clean break order dismissing all such claims. For the sake of completeness I should explain that the court can dismiss just one party’s claims against the other, or some financial claims but not all, but in either case that is not a complete clean break.
Many readers will no doubt recall the recent case Wyatt v Vince, in which a wife returned to make a financial claim against her husband nineteen years after the divorce was finalised. If there had been a clean break order at the time of the divorce then no such claim could have been made. The sort of situation that occurred in Wyatt v Vince is likely to become more common with fewer people taking legal advice when they divorce due to the lack of legal aid, and therefore not knowing they need a clean break order. Even if they do know they need a clean break most litigants in person will not know how to draft a court order, and may therefore not bother. However, getting a clean break order is not something that can be ignored, and the cost of instructing a solicitor to obtain one for you may be considerably less than the cost to you down the line. Clean breaks are actually appropriate in the majority of divorces – if you have not done so already, you should seek advice from an expert family lawyer as to whether one is appropriate in your case, and if so how to obtain it.
Image by aimee rivers via Flickr under a Creative Commons licence