posted 26th January 2023
What Is a Clean Break Order?
Consent Orders and Clean Break Orders are often used as interchangeable terms. That is not strictly correct.
A Consent Order achieves a clean break where its terms leave no ongoing financial ties between the parties, such as maintenance payments.
A clean break Consent Order is a voluntary agreement entered into by two parties getting divorced. It is created to prevent either party from making claims against the other's future income or assets.
Why the divorce alone is not enough
Without a Consent Order, either party can make a claim against the other's finances at any point in the future. Obtaining the Final Order of divorce does not by itself prevent that. A Consent Order is what does.
There is no difference in outcome between a clean break Consent Order and a clean break Order imposed by a Judge. The difference is how it comes about: one is agreed between the parties, the other is imposed after court proceedings.
It has to be fair
A Consent Order needs to divide the assets and debts fairly. Where the agreement appears to favour one party over the other for no good reason, the Judge will not approve it.
The grounds for the divorce are not relevant here. If one party feels aggrieved about how they were treated during the marriage, that will not be taken into account. The order must be fair in accordance with the law.
The two types
Full clean break Consent Order
This dismisses both spousal maintenance and capital claims against either party.
Capital clean break Order
This applies where there is an ongoing maintenance order in favour of one party. In those cases only a capital clean break is possible, so neither party can come back later to claim capital or lump sums.
Maintenance payments, where included, can sometimes be varied up or down if circumstances change.
Nominal maintenance
Occasionally parties agree a nominal maintenance order. This states that maintenance is not payable now but leaves the door open for income claims in the future if circumstances change.
It should only be considered with extreme caution, because it means the financial tie between the parties is not fully severed. We will explain the implications before anyone agrees to it.
Child maintenance is different
A clean break Order does not prevent a claim for child maintenance. Those claims cannot be dismissed through the courts.
Where child maintenance is not dealt with in the Order, any claim will need to be made to the Child Maintenance Service.
When you need one
If you are selling or transferring property, sharing a pension or paying money from one party to the other, you need a Consent Order. It is what makes the agreement legally binding, so that if the other party does not follow the terms, you can take them back to court.
We draw up consent orders as part of the mediation. Get in touch for a free initial consultation.
