Do you need a clean break order when getting divorced?

The best London divorce solicitors will answer the question “do I need a clean break order” as part of my divorce with an affirmative if the person asking the question is the financially or economically stronger spouse and they want the certainty of future financial independence from their former husband or wife.

However, the top London divorce solicitors will tell you that it is surprisingly common for the financially weaker party to a marriage to be equally keen to secure a clean break financial court order to sever any financial ties with a former spouse or civil partnership and to be masters of their own destiny.

The family court is encouraged, wherever possible, to achieve finality and a clean break between a husband and wife or between civil partners. However, depending on a couple’s financial or personal circumstances, sometimes that just is not financially possible or prudent.

How can OTS Solicitors help?  

If you need legal advice on a financial settlement or financial court proceedings and the securing of a clean break financial court order then OTS Solicitors’ divorce and family finance team can help you.

For a confidential discussion on how OTS Solicitors can help you in negotiating a financial settlement or by providing representation in court proceedings please call us on 0203 959 9123 .

What is a clean break financial court order?

The best London divorce solicitors advise that a clean break financial court order prevents a husband and wife from making any further financial claims against the other spouse (other than enforcing the agreed financial settlement consent order or a court imposed financial court order after contested financial proceedings).

Financial claims after a divorce with no financial settlement or financial court order

Many couples either do not see the need or do not have the energy to get a financial settlement or financial court order at the time of their divorce proceedings. The best London divorce solicitors say that is because couples are focussed on getting their decree absolute and moving on with their lives, for example, selling the family home and splitting the proceeds by agreement but without looking at other assets or spousal maintenance claims.

If you separate or divorce without getting a clean break financial court order then you risk your spouse or former spouse bringing a financial claim against you, at a time of their choosing, and asking the court to order:

• A cash payment or lump sum;
• A pension share, called a pension sharing order;
• An order for the sale or transfer of property;
• An order for the sale or transfer of shares in a family business;
• Spousal maintenance.

All these claims can be prevented if a couple get a clean break financial court order.

What happens if you get a financial court order but there is no clean break?

If there is no clean break agreement as part of your financial settlement or financial court order then either husband or wife could make some limited financial claims, for example, for spousal maintenance or for lump sum spousal maintenance (known as capitalisation of spousal maintenance).

You might think the risks of a claim for spousal maintenance are low but the top London divorce solicitors advise that it is best to be prudent and achieve finality. For example, a claim for spousal maintenance might be made if one spouse is ill and cannot work or one spouse achieves financial success with an entrepreneurial business.

Are financial claims after a divorce time limited?

Top London divorce solicitors advise that there is no time limit to bringing a financial claim if there is no clean break order. There have been cases where spouses have waited twenty years from the date of separation to bring a claim. A young couple might have had few assets but roll forward twenty years and the position may be very different.

The best London divorce solicitors say that the divorce court would take into account the reasons for the delay in bringing the financial claim and significant delay may result in either no financial award or a more limited award. However, a clean break financial court order could avoid the risk of future court litigation.

Can you only get a clean break financial court order by agreement? 

Spouses are often put off from securing a clean break financial court order because their spouse or former spouse either does not want to bother getting an order or objects to a clean break.

If a husband and wife agree to a financial clean break order, the order can usually be made without needing to attend a court hearing. A London divorce solicitor will draw up the court paperwork and submit it to a family judge for approval.

If a husband or wife will not agree to a financial clean break order, it is sensible to take legal advice from the best London divorce solicitors on your options. A divorce solicitor can advise you on the likely financial court order if you were to bring an application for a financial order and the court were to make a decision on what financial orders to make and whether it should impose a clean break. With an expert assessment, you can consider the risks of doing nothing or making a court application.

The risks of doing nothing are higher if you are an entrepreneur or business owner or own a property or have a pension. That is because the value of all these assets may grow, and at a later stage a financial claim may then be made.

In any divorce proceedings, the best London divorce solicitors recommend that a husband and wife take legal advice on their options and the advisability of obtaining a financial court order. If you are the economically or financially weaker spouse, you should think carefully before agreeing to a clean break financial court order. This is because once a clean break order is made it is very difficult to establish any financial claims unless you can show that the order was made based on incomplete or inaccurate financial disclosure on the part of your spouse. You also have to establish that full or accurate financial disclosure would have made a difference to whether the court would have approved the clean break financial court order.

How can OTS Solicitors help?

For advice on valuing assets in financial negotiations after a separation or divorce  or for representation in financial court proceedings or advice on your financial settlement options please call OTS Solicitors on 0203 959 9123 for a confidential discussion about how the London divorce solicitors at OTS Solicitors can help you.