What is a Clean Break Consent Order?  Do I need one?

Everything you need to know about a clean break consent order

The simple answer is Yes!!

Separating from your spouse or civil partner can be an emotional and stressful time and worrying about finances as well as divorce can enhance this.  We would always recommend that the parties look at reaching an agreement in relation to their financial affairs, at the same time as the divorce, and for that agreement to be recorded in a Court Order.  Ideally, you need to look at achieving a clean break so that once the Court Order is approved and made by the Court, you and your spouse or civil partner can be financially separate as well as legally separate after the divorce.

A Clean Break Order is therefore the aim for many people in this situation and can prevent any future financial claims.

Why is a Clean Break Order needed?

When you get divorced, the finances still need to be finalised.  A lot of people are under the impression that only joint assets and property need to be divided at the time of separation, and that is the end of the matter. Unfortunately, this is not the case.  Simply obtaining a divorce does not mean that your finances are resolved.  This is where a Clean Break Order can be obtained, setting out the terms of a financial settlement.

How does a Clean Break Order work?

An order is prepared to end all financial commitments between the parties. This can include dealing with property, savings, other assets, income, debts, inheritances, and pensions.  It would also prevent your ex-partner seeking a share of your winnings if you were to win the lottery!

How do I obtain a Clean Break Order?

The agreement on finances can be obtained in many ways, by agreement between the parties, through solicitors negotiating on the party’s behalf, through mediation or by the court making the decision on finances.

Usually, parties are able to reach an agreement themselves or through their solicitors without the need for the court to make a decision on finances.

If an agreement has been reached between the parties themselves, solicitors can be instructed to draft the Clean Break Order and D81 Statement of Information, which is a snippet of both parties’ financial position and will allow the court to decide if the agreement reached is fair and can be approved.

If the parties are unable to reach an agreement and require involvement from solicitors, disclosure of each party’s financial position will be required, and negotiations can then take place.

If an agreement cannot be reached on a voluntary basis, financial proceedings can be issued to involve the court and a timetable is set by the court up to a final hearing.

Once an agreement has been reached or the Judge makes a decision, the terms are drawn up into an order. The court will only approve or make an order if the settlement is fair and reasonable, taking into account all the circumstances of the case.  Clearly, an order will not be made or approved if it is unfair to one of the parties or any children of the family, and they would suffer financial hardship as a result.

The Clean Break Order is only finalised once it has been approved by the court.

At what stage should you look to obtain a Clean Break Order?

The financial settlement can be agreed prior to a divorce or during divorce proceedings, but a Clean Break Order cannot be approved by the court until divorce proceedings have been started and there is a Decree Nisi in place.

Do we both need to agree to a Clean Break Order?

Yes, both parties will need to agree and sign the Clean Break Order if an agreement is reached on the finances. If an agreement cannot be reached, a party can apply to the court to become involved and the judge at the final hearing can decide if a Clean Break Order is ordered. Most cases settle prior to the final hearing.

Why is a Clean Break Order so important?

Without a Clean Break Order your ex-spouse could bring a financial claim against you at any time in the future, even after Divorce.

A Clean Break Order therefore provides finality on your financial position and without any need for worry about future claims from your ex-spouse.

When is a Clean Break Order not suitable?

One of the main reasons where a Clean Break Order may not be suitable is where one party earns much more than the other and therefore Spousal Maintenance Payments may be appropriate.

Can a Clean Break Order be overturned?

A court can overturn an order but is very reluctant to do so and therefore this only happens in very limited circumstances for example fraud or where one party did not disclose all of their property or assets.

If you have separated from your partner and require any legal assistance, then Andrew Isaacs Law Limited are here to help. Please contact us by email family@andrewisaacs.co.uk or telephone 01302 349 480.

We can even help you formalise a financial agreement, even if you do not want to seek a Divorce just yet.  Please contact us to discuss your options with one of our friendly and experienced lawyers.

Nicola Magrath  Family Law Solicitor

13.01.2022