What is a ‘clean break’ and why is it important?

clean break

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

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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Sarah - December 1, 2016 at 7:13pm

John is it possible to discuss this further please, 4 years post a Mostyn J order I remain party to N investment mortgage which has led to the loss of my employment in finances- I was made to sell my flat by order obtained at a lower court with misrepresentation – I applied to the court to enforce being removed as I can’t get a home for me and the children – there was a clean break but it’s not happening ??

keith - December 1, 2016 at 7:35pm

Does anyone know of any efforts being made with regard to pushing for a Govt investigation into corruption between family court judges and social workers etc as exposed by Justice Pauffley below.
this should have made BBC news. very suspicious why it didnt.


natalie - February 6, 2017 at 9:43am

I am currently applying for a DIY divorce, i have the petition for divorce all ready to go to the courts but wondered when i need to get the clean order sent to the courts? Do i wait for proceedings to start or do i sent at the same time as the petition?
Thanks Natalie

NS - April 6, 2017 at 10:33am

I am the new partner with a divorced man who was not awarded a clean break and our lives are being ruined by the constant attacks by his ex-wife. I own a business and when he divorced planned to employ him on a decent salary on which spousal was awarded. Unfortunately due to the loss of a contract this was unable to happen and since then he has been unable to work to a decent level due to the depression and his ex-wife turning his eldest daughter against him.

I have read through many blogs and am keen to get views on how we overturn this life order and reduce it to a clean break now or after a short term as the youngest daughter is 19 next year. He has just been constantly discredited by a good Barrister and I am constantly challenged as use my business to support our lifestyle.

It appears a real grey area and no solicitor to date has been able to answer this – i would be really interested in you thoughts.

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