Clean Break Orders

What a Clean Break Order Is

A clean break order is a financial order that ends the claims you and your former spouse or civil partner can make against each other. Once they are dismissed, neither of you can return to court for maintenance, a lump sum, property or a share of the other's pension.

There is no separate application. The wording sits inside a financial order: a consent order recording terms you have agreed, or an order the court makes in financial remedy proceedings.

Ending the marriage does not end the money claims. Section 23 of the Matrimonial Causes Act 1973 lets the court make financial provision orders on making a divorce order or at any time after it, with no deadline, so a former spouse who never obtained an order can still apply years later. Our financial settlement on divorce page covers how a settlement is reached.

The court's clean break powers arise only once a divorce or nullity order has been made, which in a divorce is the conditional order, so no clean break forms part of a judicial separation. Civil partners are in the same position: the duty in paragraph 23 of Schedule 5 to the Civil Partnership Act 2004 arises only on a dissolution or nullity order.

The Section 25A Duty and the Legal Test

Section 25A(1) of the Matrimonial Causes Act 1973 requires the court, when it makes a financial order for a spouse after a divorce or nullity order, to consider whether the obligations between you should end as soon afterwards as is just and reasonable. GOV.UK puts it plainly: the judge will usually try to arrange a clean break, so that you no longer have any financial ties to one another.

It is a duty to consider, not to impose. A clean break is weighed against the section 25 factors, first consideration going to the welfare of any child of the family under 18. Where one of you cannot yet meet your needs from your own resources, section 25A(2) points to maintenance for a term rather than an immediate clean break.

Section 25A(3) goes further: where a spouse applies for periodical payments and the court decides no continuing obligation should be imposed, it can dismiss the application and bar any further application for maintenance in that marriage.

Immediate and Deferred Clean Breaks

An immediate clean break settles capital and pensions now and dismisses every claim at once. Where that is not yet possible, the order can be staged:

• a deferred clean break, where spousal maintenance runs for a fixed term and the claims are dismissed when it ends
• a term with a direction under section 28(1A), which stops the receiving party applying under section 31 to extend it
• later capitalisation, where the court discharges or shortens an existing maintenance order and makes a lump sum, property adjustment or pension sharing order instead under section 31(7A) and (7B)

A pension sharing order under section 24B moves a share across once, which suits a clean break. An attachment order under sections 25B and 25C does not, because the provider pays part of the benefits over as they fall due; section 24B(5) also blocks sharing where such an order is already in force: see pensions on divorce.

A full clean break deals with death as well: under section 15 of the Inheritance (Provision for Family and Dependants) Act 1975 the court can bar the other party, on your application, from claiming provision out of your estate when you die.

What a Clean Break Cannot End

A clean break ends the claims between the two of you. It does not close what is owed for a child, or cure a flawed order.

• Child maintenance: section 8(3) of the Child Support Act 1991 stops the court making, varying or reviving a maintenance order where the Secretary of State could make a calculation, with only narrow exceptions: see child maintenance.
• Claims for a child under Schedule 1 to the Children Act 1989, which a parent, guardian, special guardian or a person named in a child arrangements order may bring: see Schedule 1 claims.
• Obligations and arrears under orders already made, which stay enforceable: see enforcing a financial order.

The court must also be satisfied: a judge approves the order only if they think it is fair. Form D81 asks, where maintenance claims are to be dismissed, how each of you will support yourselves, and whether either of you intends to remarry or cohabit.

Once an order is made, rule 9.9A of the Family Procedure Rules 2010 allows an application to set it aside where no error of the court is alleged. Practice Direction 9A paragraph 13.5 says the grounds remain a matter for the judges and include fraud, material non-disclosure, certain limited types of mistake and a later unforeseen and unforeseeable event that invalidates the basis of the order; paragraph 13.8 adds that the ground must be established or admitted first: see hidden assets and non-disclosure.

How a Clean Break Order Is Made

1. We take full disclosure of income, capital, pensions and debts from both sides, then advise whether an immediate clean break works on those figures or whether maintenance is needed first so the receiving party can adjust without undue hardship.
2. Terms are negotiated directly, through solicitors, in family mediation or at a private FDR.
3. We draft the order: the dismissal of claims, any bar on extending a maintenance term, the pension terms and the direction about claims on your estate.
4. Under rule 9.26 we lodge two copies of the draft order, one endorsed with the other party's signed agreement, and each party's statement of information in Form D81, with the notice of an application for a financial order where none has been issued. The court fee is on the GOV.UK court fees page and help paying court fees may be available.
5. A judge deals with it on the papers: there is usually no hearing and, unless the court directs otherwise, you need not attend. The order cannot be approved before the conditional order.
6. Once it is sealed the order is binding, but under sections 23(5), 24(3) and 24B(2) of the 1973 Act nothing in it takes effect until the final order: we implement the transfers, the payments and any pension share after that.

When Legal Advice Is Especially Important

Take advice before you sign anything where:

• one of you earns considerably more, so maintenance, a fixed term or a capital payment is in play
• there is a pension of any size, or a business to value
• either of you plans to remarry, because section 28(3) bars a later application for maintenance or a property transfer
• there are assets overseas, because an order here may not reach everything
• you divorced years ago without a financial order, or the disclosure looks incomplete and a sealed order is hard to undo

You do not need a mediation information and assessment meeting to ask the court to approve an agreed order: Practice Direction 3A paragraph 13(2) takes proceedings for a consent order out of that requirement. A MIAM is normally needed before a contested financial application, with exemptions such as evidence of domestic abuse: see our MIAM advice page. If you are in immediate danger call 999; the National Domestic Abuse Helpline is 0808 2000 247.

How RakLAW Solicitors Can Help

RakLAW Solicitors advises on clean break orders from 42 Shad Thames in Southwark, a short walk from Tower Bridge. A free 15-minute consultation is a starting point: we can set out the options and the disclosure the court will expect, and our charges are explained on our family law fees page.

Where an order is already running we advise on varying a financial order. Related topics are listed on our money and financial settlements hub. Call 0203 345 2000 to book a free consultation. RakLAW Solicitors is SRA regulated, SRA number 8007405.