Divorcing couples are becoming more alert to the prospect of a Clean Break Divorce.
The principle of the Clean Break is to settle both parties’ financial responsibility towards each other and end any financial interdependence, enabling them to leave their past behind and begin anew.
The advantages of this approach have long been acknowledged, but with the enactment of the Matrimonial and Family Proceedings Act 1984, which introduced s25A into the Matrimonial Causes Act 1973, the concept of the clean break was given statutory backing.
The Court now has a duty to consider whether a “clean break” Divorce should be achieved.
Section 25A(1) states:
“Where on or after the grant of a decree of divorce or nullity of marriage, the court decides to exercise its powers under Section 23(1)(a), (b), (c), 24 or 24A above in favour of a party to the marriage, it shall be the duty of the Court to consider whether it would be appropriate so to exercise those powers that the financial obligations of each party towards the other will be terminated as soon after the grant of the decree as the court considers just and reasonable.”
The wording of the section merely imposes a duty on the Court to consider the suitability of a Clean Break as an option; it does not compel the Court to make a Clean Break Order wherever possible. Nonetheless, s24A has been labelled as a ‘statutory steer’ towards a Clean Break Divorce and in practice; the judiciary perceive a Clean Break Order as the more favourable option in parties’ separation. In Matthews v Matthews  EWCA Civ 1874, Lord Justice Tomlinson stated:
“We are here considering an exercise of discretion, but it is an exercise of discretion in which Parliament has indicated that there should be a clear presumption in favour of making a clean break, in the sense that it is something which the Court is mandated to consider… as an initial consideration.”
Granted, a Clean Break Order is not to be made regardless, but in truth, the Court must assess the merit and statutory factors when deciding whether a Clean Break is appropriate in that particular case. For example, Lord Nichols in Miller and MacFarlane stated:
“If the Claimant is owed compensation and capital assets are not available, it is difficult to see why the social desirability of a clean break should be sufficient reason for depriving the claimant of that compensation.”
Why should you get a Consent Order?
When couples enter into marriage, it provides the other with an automatic right to claim financial provision in the event that the marriage breaks down. One recent very high profile case namely that of Wyatt v Vince demonstrates a perfect example why obtaining a Consent Order i.e. a Clean Break Order is so important.
This case involved the Wife’s claim for financial provision against her ex-husband who was not very wealthy during their marriage but came into a multi-million pound fortune following their separation. Although they had divorced in 1992, because there was no Consent Order in place, the Wife’s claim for financial provision was not heard until 2 decades later!
If a Clean Break is suitable in your circumstances, the only way to guarantee that there are no future claims made against you following your separation is to apply for a Court Order. In absence of such an Order, it is a possibility that you may be hit with a claim for financial provision such as lump sum or maintenance orders.
How can our Divorce Solicitors help?
A Consent Order is binding and if an order is made without proper consideration for the assets including pensions and business interests and accurate valuations of any marital property, one party may not achieve a full and fair settlement and will not be able to renegotiate the terms of the Order at a later date.
It is therefore imperative that Consent Orders are drafted accurately by a Solicitor and if one party is suggesting financial settlement by way of a Consent Order, the other should always obtain independent legal advice.
We are committed to providing professional advice and our specialist Family Finance team have a proven track record in securing appropriate financial provision for clients and their families.