Clean Break Orders

 Orders which sever the financial ties of marriage after divorce

Clean Breaks and how to get a Clean Break Order

Marriage brings with it mutual obligations to maintain, which can continue long after the marriage is dissolved, unless brought to an end by an order of the court. This can create unfairness and will often be a barrier to the parties re-building their lives. The court is therefore required to consider making a clean break order thereby severing all financial ties whenever this is possible. A clean break can never apply however to children, and the obligation to maintain (and the parental responsibility) for children is unaffected by the parents’ divorce.

Section 25 (a) of the Matrimonial Causes Act

This provides that the court, on making a financial order, has a duty to consider whether it would be appropriate to exercise its powers to make the order in such a way that the financial obligation of each of the parties towards the other will be terminated as soon after the grant of the decree, as the court considers proper. The court must therefore under S25(a) MCA give thought to the advantages of a clean break order. They are not obliged to impose a clean break; they are only obliged to consider whether a clean break is appropriate and fair in all the circumstances of the case.

 

The modern approach to ancillary financial matters on divorce was put by Lord Scarman in Minton v Minton. He said:

‘An object of the modern [divorce] law is to encourage [the parties] to put the past behind them and to begin a new life which is not overshadowed by the relationship which has broken down.’

There are two main ‘clean break’ models relevant to property, the latter being most appropriate when there are young children to be housed:

  • For the matrimonial home and any other major family asset to be sold and the net proceeds divided between spouses, not necessarily on a 50/50 basis. An alternative to a sale is for one party to buy out the other, although this could not be ordered by the court.
  • For the property to be transferred to one spouse (usually with the other being released from the mortgage) on the following basis:

* Outright either (a) with no payment to the departing spouse. Any unfairness can be offset by relieving the party losing his or her house share from any ongoing maintenance obligation, or (b) by way of a cash payment from the spouse acquiring the others interest to the other spouse in order to put towards acquiring a new property.
or
* Retaining an interest, i.e. by the departing spouse keeping a percentage interest in the equity of the property to be received in the future upon the sale of the property.

The postponed sale could be triggered by an event such as the youngest child attaining the age of 17 or finishing full time education.

Meal tickets for life

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).

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