Many clients will instinctively want a “clean break” following the breakdown of their marriage, without always fully understanding if it is right for them. The premise behind this clean break principle is to once and for settle the parties’ financial relationship, interdependence and responsibilities with one another. Put simply, it is an opportunity to put the past behind them and start afresh.
However, this is usually only possible in cases with ample assets, or if both parties have enough income or earning potential so that periodical payments are, or will become, unnecessary. Where the court makes a periodical payments order, intending it to be for a finite period, it may either leave open the possibility of the recipient applying to extend the term if, for example, it turns out that despite her best endeavours she is unable to obtain a job from which she might support herself, or it may close off that possibility by making an order under the Matrimonial Causes Act 1973, directing that she may not apply to extend the term.
Where there is a clean break between the parties, there may either be no spousal periodical payments or the payments may be limited for a period of time. The advantages of a financial break have long been accepted by the courts, although section 25 of the Matrimonial Causes Act 1973 provided the principle with statutory backing. The courts are now obliged to consider whether a clean break is appropriate in all the circumstances and whether it can be achieved. In this respect, section 25 steers the courts towards a clean break, although judges are not obliged to make a clean break order.
In practice, the courts view a clean break as a preferred outcome for both parties. In Matthews , the Court of Appeal stated “…there should be a clear presumption in favour of making a clean break…”. The attraction to the courts of such an order is so great, that they may in fact depart from the starting principle of equality of division, if an unequal distribution of capital is the only means of achieving the clean break.
Clean break orders are generally only considered appropriate in circumstances where the parties have enjoyed a short marriage, perhaps where one party is cohabiting with a new partner, perhaps where the applicant has a reasonable earning capacity or the prospect of an earning capacity, or where the needs of the parties can be met from capital assets. The court will often consider that it is not appropriate for parties to a long marriage, where the applicant is the primary carer of a child or cannot work due to ill-health for example.
Serving Bedford, Northampton and Milton Keynes, our lawyers can help you with your family law and divorce matters. If you want to speak to one of our specialist family law solicitors about your finances and whether a clean break is right for you, contact us on 01234 889777 and talk to Philip Hunter or Pui Uro today.