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

Author:
James Skinner
Associate Solicitor, Family Law and Divorce
Date:
01/10/2019

The short answer is no, but a clean break can form part of a Consent Order. We explain the main difference between the two below and give some examples of when you might want to use them.

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 bring to an 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 at a later date 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.

Call us on 08002605010 or request a callback and we will help you.

Clean Break Order Explained

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 protection your income and pension from further attack and any future inheritances or wind-falls, 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 an spousal maintenance order. The Court can also defer a clean break on capital and inheritance as well and usually do so if there is a 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 in itself 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

You can see why a Consent Order with or without a clean break is essential at the end of any marriage, whether you have plenty of money or not.

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