People are becoming increasingly aware that it is in their best interests to obtain a clean break order when they divorce. The recent case of Vince v Wyatt  UKSC14 was well publicised, emphasizing for many, the importance of a clean break order.
A clean break order is an Order made, often at the time of divorce, which prevents usually both the husband and wife from making further financial claims of any kind at any stage in the future.
An order can be made by consent i.e. the Court is asked to approve an agreement reached between a husband and wife that all future financial claims are to be dismissed. This type of clean break order is often referred to as a “consent order”.
Clean break orders can also be made if a husband and wife cannot agree, and one of them applies to the Court for a Judge to list at least one, but can sometimes be up to three, Court hearings on whether or not a clean break order should be enforced.
The case of Vince and Wyatt highlighted that if a clean break order has not been made, a husband or wife can ask the Court for financial orders to be made against the other many years after divorce. The common and mistaken belief is that financial claims die when Decree Absolute, the final decree in divorce, is issued by the Court.
Ms Wyatt and Mr Vince married in 1981, separated in 1984 and divorced in 1992. They had a son together and Ms Wyatt also had a daughter from a previous relationship who lived with Ms Wyatt and Mr Vince. Following separation, Mr Vince had a “new age travelling lifestyle” and Ms Wyatt brought the children up with little financial contribution by Mr Vince. Mr Vince later set up a green energy business and became a multimillionaire. In 2001, Ms Wyatt and Mr Vince’ son went to live with Mr Vince.
Although the couple divorced, no clean break order was made or indeed any other financial order. Ms Wyatt successfully persuaded the Supreme Court, some 20 years after she had separated from Mr Vince, that she had a financial claim against him for a lump sum payment.
When asked to approve an agreement reached as a clean break order, a Judge will still consider whether or not the basis of the factual financial information submitted is an Order that a Judge would have made if heard at a hearing. Therefore a Judge will not just approve any agreement that has been reached.
If papers are submitted to the Judge for him/her to consider as an agreement the Judge may:
- Refuse to approve the agreement if he/she thinks that it isn’t an order that would have been made on the basis of the factual information submitted. A Judge will usually set out the reasons why.
- Approve the agreement as a clean break order
- Require either the husband or the wife or both to attend Court – this often happens if one party does not have any legal representation
If submitting an agreement to the Court for a Judge to approve as a clean break order, the Court will require the following documents to be submitted:
- Form A
- Court fee
- Notice of application by consent
- Draft Order
- Statement of information form
This paperwork is not straightforward to complete and a draft clean break order by consent is, more often than not, a document prepared on an individual basis for each case. It is therefore vitally important to obtain legal advice if you are either asked to counter sign documentation or if you are considering asking the Court to approve an agreement as a clean break order.
In a rapidly changing legal landscape it is important to obtain the right legal advice about your options when your relationship breaks down. Contact Emsleys’ Solicitor and Head of Family Law, Gabbie Clasper, on 0113 201 4900 for a free, no obligation consultation.
Nov 6, 2017
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