Whilst section 25 (a) MCA encourages the court to grant a clean break, it discourages ongoing maintenance payments to a spouse and property settlements whereby the property is transferred to one spouse, but on terms that it be sold at some future date and the proceeds then divided. Such orders result in the parties remaining tied together financially, with the trouble and difficulty that this can cause. Although this is likely to be disadvantageous, the ultimate duty of the court is to come to the fairest and most appropriate form of settlement. In some cases, a clean break will simply not be possible.

In the case of Clutton, the parties divorced after nearly 20 years of marriage. There was one child still living at home with the wife, who had a small income. The husband’s income was modest and there were a number of debts. The court initially transferred the house to the wife, with a charge of £7,000 to the husband and an order that he pay maintenance.

This was appealed and a clean break was imposed, transferring the house to the wife with no charge but with her maintenance order being cancelled. The husband appealed to the court of appeal. It was held there that the absolute transfer to the wife deprived the husband unfairly of his share. The court had tried too hard to impose a clean break here, as fairness in this situation did not make one possible. An order was made that the house be settled on the wife to be sold when the wife died, remarried or cohabited.

Clean break or nominal maintenance

In some instances, a clean break is not possible straightaway, but can be envisaged after a while, to allow a spouse to become self-sufficient. Section 25 (A) (2) MCA therefore requires the court to consider allowing an adjustment period, during which maintenance is paid, but after which period it will cease and effectively a clean break take place.

Thus, in the case of Evans, maintenance for the wife was limited to three years, by which time the children would not be so dependent upon her and she would be able to go out and work. In Hodges, a maintenance order was limited to 18 months. The wife was aged 37; there were no children and the limited period for her to receive maintenance ordered allowed her to adjust to her situation after the breakdown of a short marriage which had not caused a setback to her job prospects.

When making limited term maintenance orders, the court can also make an order preventing the person receiving the money from applying for an extension of the order. The court also has powers under section 25 (A) (3) to dismiss an application for a maintenance order, and at the same time direct that the applicant may not make any further applications for maintenance.

A limited time order under section 25 (A) (2) will not however always be possible. The court will be reluctant to place a time limit on an order where the future is uncertain and cannot be predicted. Thus, in Suter, the wife was aged 31, lived with a young man and had two children aged 14 and 8. Her relationship with the young man was too uncertain and she had no intention of remarrying. The court felt that it was not possible to predict with any confidence that she would be able to adjust to financial independence. A nominal maintenance order was made without any order under section 25 (a) (2).