More often than not a divorce will have several different aspects that need to be covered such as: the divorce process itself; any child arrangements and finally the finances, which is where the phrase “clean break” can become extremely relevant.
- Resolving financial matters after divorce can be a lengthy process
- What factors affect a divorce settlement?
- What is a clean break divorce settlement?
It is often the case that where divorce proceedings are issued there are financial matters that will also need to be resolved. As such, financial matters can run in parallel to those of the divorce proceedings. Although the divorce proceedings may be relatively straightforward, the resolution of financial matters, dependent upon their complexity and other relevant issues, may take a considerable or a greater period of time.
Financial issues are governed in divorce proceedings by the Matrimonial Causes Act 1973 and this provides a series of factors that should always be taken into account. In addition to those factors, if there are children of the family then the welfare of any child who has not as yet attained the age of eighteen will always be a primary consideration of the Courts.
The factors are as follows:
- The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future
- The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
- The standard of living enjoyed by the family before the breakdown of the marriage (realistically it will often be the case that both parties cannot expect to continue in the same lifestyle as prior to the breakdown);
- The age of each party to the marriage and the duration of the marriage;
- Any physical or mental disability of either of the parties to the marriage;
- The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, for example, by looking after the home or caring for the family;
- The conduct of each of the parties, if that conduct is such that it would, in the opinion of the Court be inequitable to disregard it.
- The value to each of the parties to the marriage of any benefit (for example a pension) to which by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
The Court does have a wide discretion in which to apply the above noted factors – they are not listed by importance or priority over the other.
A consideration for the parties is whether a clean break is possible. The clean break will effectively bring to an end the financial obligations and rights to each of the parties to the marriage against the other and can be both in life and in death. A clean break will be recorded, along with the financial agreement, into a Minute of Consent Order and bars either party from claiming further money from the other both during their lifetime and on death (i.e. a claim over the Estate of the deceased).
A clean break is often appropriate where, say the parties are both working, earn similar incomes and do not have children.
Even where there are children, the clean break option should still be considered and there may be ways of still agreeing a clean break. For example, a party who is entitled to claim spousal maintenance (due to them working less hours or earning less due to looking after children under the age of 18) may still agree to receive/retain a greater amount of capital (either by way of a house sale or transfer). Or, it may be agreed for there to be a pension share instead of receiving spousal maintenance.
However, in all cases, it is important to look at individual circumstances so that we can advise you further as to whether or not a clean break should be considered.
If you would like to speak to one of our specialists regarding any aspects of your divorce or other matrimonial matters please contact Paul Wild, our matrimonial partner, on 0118 958 9711 or [email protected].
Are you considering the benefits of a clean break divorce settlement? Meet with Paul or one of our other Family Law specialists at the Barrett & Co offices in Reading. Paul offers a one hour fixed fee consultation for just £95 including VAT.