Many people assume that once they are divorced their ex-spouse has no future financial claim against them.
This is simply not the case.
Where a couple obtains a divorce without dealing with financial matters. And providing they have not remarried prior to making an application to the courts. Their claim against the other remains open.
This means there is a risk that you may be forced to share future wealth, inheritance, property or pension with your ex, even decades after your divorce.
The right of a former spouse to make a claim against your property, income and pension ends in only one of two ways
- if they remarry prior to making an application to the courts;
- or by sealed court order such as a clean break order or consent order.
What is the difference between a clean break order and consent order?
Both a clean break order and a consent order achieve the same goal. That is, that they prevent a former spouse making a financial claim on any assets after a divorce.
The difference is down to the purpose of the order. A consent order list any assets which are due to be divided at the time of the divorce. Meanwhile, a clean break order is when former spouses do not have any assets which are due to be divided.
What type of claims can a former spouse make?
The financial orders that can be obtained include any or all of the following:
- Maintenance (i.e. income payments);
- Adjustment of property ownership (i.e. transfer of a house from joint ownership to the sole ownership of one spouse);
- Lump sums (i.e. capital payments);
- Pension sharing / attachment.
Why get a clean break order?
There are a number of reasons why divorcing couples think they do not need to obtain a clean break order.
Maybe they do not own a property or the property they jointly own has little equity in it.
Maybe they have parted ways amicably and have verbally agreed they will not make a claim against the other in the future.
Unfortunately, unless the agreement is recorded in a sealed clean break order or consent order there is always the risk that an ex-spouse will change their mind and make an application to the court for financial provision.
Sometimes a change in circumstances will result in an application for financial provision. Common examples include ill health or being made redundant.
As no one can predict the future it is wise to ensure financial matters are fully resolved and any future assets are protected.
How do you get a consent order?
Where divorcing couples have agreed how to split any marital assets and mutually ‘consent’ to their future respective financial claims against each other being dismissed, a consent order can be drafted by a divorce solicitor.
This would be filed to the court along with a statement of information. This discloses the financial circumstances of each party and allows the court to determine whether the agreement is fair and reasonable.
If the court approves of the consent order it will be ‘sealed’ to make it legally binding.
Can the courts refuse a consent order?
The court can refuse a consent order. But if drafted correctly, by a legal professional, it is unlikely the courts will take issue with it.
Once the consent order has been sealed it is very difficult for either party to dispute the financial agreement in the future.
Courts are able to consider financial applications once the divorce has reached the Decree Nisi stage and we would advise anyone going through a divorce to obtain a clean break order to protect their assets and prevent a future financial claim.
We can help
For more information on a clean break Consent Order contact Emma Darley or another member of the family law team at Ringrose Law. Contact 01522 561020 or email enquiries@ringroselaw.co.uk