What is a Clean Break Divorce?
‘What is a Clean Break Divorce?’ is a question that should be followed with one simple statement: it’s the best means of addressing the most common and potentially damaging divorce myth of all.
It is widely believed that the financial ties that exist between spouses are permanently severed after a divorce has been finalised. In truth, these ties continue to exist until a court rules on how finances and assets should be divided (which they will not do unless formally asked to) or an agreement is made legally binding. In other words, either party can bring a claim against the other at any time if the division of assets has not been made binding by a court. So much so, in fact, that there have been occasions were claims have successfully been brought several years after divorces have been finalised. More surprising still is that spouses even have a claim to assets earned after the divorce, so potential windfalls like inheritance are fair game if the division of assets hasn’t been formally dealt with.
Many couples will, of course, be unable to agree on how they should divide their assets. When such circumstances apply, the courts will decide who gets what. If the couple can reach an agreement, though, they can make the agreement legally binding by obtaining a Consent Order – something which is more commonly known, albeit colloquially, as a Clean Break.
How to get a Consent Order
A Consent Order is generally obtained following a Decree Nisi having been granted but before the Decree Absolute is sought, the logic being that the agreement will be made legally-binding prior to the divorce being finalised. Whilst this is when most people file for these orders, though, one can still be obtained up to six months after a Decree Absolute is issued. The court cannot consider an application for a Consent Order before the Decree Nisi has been granted, however.
As part of the application, both parties will need to provide a full disclosure of their finances by completing a D81 form and submit this to the court along with their prepared Consent Order. Here, both parties will need to state their incomes (including additional sources such as benefits, pensions etc.) and the total value of their assets (i.e. property, shares, savings etc.). This information is required so that the judge that reviews the application can ensure that the agreement that is set out within the Consent Order is reasonable.
Should the judge that reviews the application find the details of the agreement to be unfair, they will request further written statements from both parties explaining how they arrived at the specified agreement. The judge may also ask the parties to attend an informal hearing to ensure that they both fully understand the agreement and that neither was coerced into the agreement. Such hearings are rare, though, and usually little more than a formality.
Why you need a Consent Order
There are two reasons to obtain a Consent Order. The first – the fact that it’ll prevent either party from making any further claims with regards to the other’s assets – has already been discussed. The second is that, once granted, the terms set out within the order become legally enforceable so, if either party reneges on any part of it, it’s relatively easy for the other to get what they’re owed through the small claims court.
In short, a Consent Order is the best way of finalising any agreements reached regarding the division of assets, from ensuring that the parties stick to this agreement and from preventing either from
making any further claims against the other. This, in turn, will provide both parties with peace of mind.
Still have questions? Get in touch with our advisers to find out more about divorce, clean breaks and consent orders today.