Is a Clean Break Order the same as a Consent Order?

Financial obligations or ties between married couples

When you get a divorce, you go through the whole divorce process and end up with a Decree Absolute. This brings your marriage to an end in England and Wales. But the Decree Absolute does not end any financial obligations or ties between married couples, which many people don’t understand.

Your divorce only deals with ending the marriage, not the financial obligations. It is vitally important therefore that as well as ending the marriage, you deal with any financial obligations as well. Should this not be done provided they have not re-married, your former partner could go back to Court later and bring a claim against you.

You do have the ability to sever all those financial obligations remaining after your divorce with a Court Order. This could be either by a Consent Order if the two of you can reach an agreement or following Court proceedings if you cannot.

Our specialist Divorce Solicitors can give you advice on which one is best for you.

Clean Break Order Explained

Ever heard of the term “clean break” outside of legal speak? It usually refers to when a person wants to disconnect themselves from a person or situation with no ties left behind.

This is probably where “Clean Break Order” term came from, even in the legal world because what it means for you is very similar.  

A Clean Break Order effectively draws a line under the division of assets after your divorce. Once a Clean Break Order has been issued by the Court, it means that no claim can be made on any of your assets in future and you can’t make a claim against your former partner’s assets either. This will include all capital and property you own as well as protecting your income and pension from further attack and any future inheritances or windfalls, such as a lottery win.

However, there are limitations to obtaining a Clean Break Order. If you or your former partner still have an ongoing financial obligation to the other, you may not be able to achieve a Clean Break Order. For example, and usually after a very long marriage, if there is a considerable discrepancy in incomes, then the Court will consider making a spousal maintenance order. The court might delay settling financial matters, including assets and inheritance, if there's an ongoing maintenance order.

It is important to realise the Court needs only to consider if a clean break is suitable in the circumstances. It is under no obligation to make one.

Clean Break Orders are useful in situations where the marriage ended after only a few years and each party can live financially independent of the other: say where both are working and any capital or other assets can be split between them fairly.

If you have children, this will not prevent you achieving a clean break. The payment of maintenance for your children can be agreed between you and included in any order or failing that the Child Maintenance Service deals with any claim.

Even if you think you have no money now and so don’t need any type of order, times and fortunes change. With a simple Clean Break Order, dismissing any claim for financial provision either of you may have against the other, now or at any time in the future, you are insuring there will be no nasty surprises down the line.

Consent Order Explained

A Consent Order is used once you and your former partner have come to an agreement about your finances after divorce. It’s a formal way of recording your financial agreement. This agreement could relate to child maintenance, your property, pension and income or all of these things.

Once you’ve agreed with your former partner, a specialist Divorce Solicitor can draft a Consent Order for you. Providing the agreement is fair for both of you, the Court will seal the Order. The agreement is then legally binding.  This is not simply a rubber-stamping exercise. The judge looking at the order will want to know it is fair and will read it carefully. Sometimes the judge will want to see both of you to make sure about this.

If you or your former partner fail to keep to the agreement set out in the Consent Order, it can be enforced by the Court. If you and your former partner come to an agreement but don’t make a Consent Order, then you would have to go to Court to try and have the judge turn your agreement into an order and this could be lengthy and expensive. Bear in mind also a judge might come to a completely different conclusion to the one yourself and your ex-partner did.

Distinctions and Overlaps in Consent Orders and Clean Break Orders

Now that we've defined both Clean Break Orders and Consent Orders, it's essential to discuss the distinctions and overlaps between these two terms:

Purpose:

A Clean Break Order primarily aims to sever financial ties completely, ensuring that neither party can make future financial claims against the other. Its purpose is to create a clean break, as the name suggests.

A Consent Order is a broader concept used to formalise financial settlements based on mutual agreement. While it can include clean break provisions, it can also encompass various other financial arrangements.

Content:

A Clean Break Order typically focuses on the division of assets, property transfers, and the discharge of financial obligations. It is intended to resolve all financial matters conclusively.

A Consent Order can encompass a wide range of financial provisions, depending on the parties' agreement. It may include ongoing maintenance payments, property transfers, and child support arrangements, among others.

Consent Requirement:

A Clean Break Order can be granted by the court without the need for both parties' consent, particularly if the court deems it necessary to achieve a clean break.

A Consent Order, as the name suggests, requires the agreement of both parties to be legally binding.

Enforceability:

Both Clean Break Orders and Consent Orders are legally enforceable, provided they are correctly drafted and approved by the court. Violating the terms of these orders can lead to legal consequences.

Flexibility:

While a Clean Break Order serves a more specific purpose of financial separation, a Consent Order offers greater flexibility because it leaves room to negotiate how you both agree on future financial arrangements that are more suitable to your situation.

Clean Break Order vs. Consent Order: Which Is Right for You?

Determining whether a Clean Break Order or a Consent Order is more suitable for your specific circumstances requires a careful evaluation of your financial situation, your goals, and the level of agreement between you and your former partner. Here are some considerations:

When to Choose Clean Break Order:

• A Clean Break Order is appropriate if your primary objective is to achieve a complete financial separation with no future claims against each other.
• Ideal when both parties agree on a clean break and have no intention of ongoing financial support or shared financial responsibilities.
• Suited for those who wish to ensure a clear and final resolution of financial matters, often used in situations where there are no children involved or where child support is addressed separately.

When to Choose Consent Order:

• Consider a Consent Order if you and your former partner have a more complex financial situation or differing goals regarding ongoing financial support.
• Provides flexibility to tailor the order to your specific needs, making it suitable for cases where child support, spousal maintenance, or other ongoing responsibilities need to be addressed.
• Ideal when both parties are willing to negotiate and reach mutually agreeable terms for their financial settlement.
• In many cases, a Consent Order may include some clean break provisions while also addressing other financial aspects. It allows parties to find a balanced and mutually agreeable solution for their unique circumstances.

Simpson Millar can help!

Navigating the complexities of financial settlements and legal orders can be a challenging task. Seeking legal advice and representation from experienced family law professionals is highly recommended to ensure make sure that your interests are protected and that the order accurately reflects your agreement. Simpson Millar's Family Law Solicitors can help you draft and submit the appropriate order to the court, ensuring that it complies with all legal requirements and provides you with the financial security you need.