I trust my spouse! – Is a clean break consent order necessary?
I recently spoke with someone who was querying whether to enter into a clean break consent order with their spouse having been separated for over a decade. Divorce proceedings had commenced and were now at the half way stage.
Both parties had privately agreed that they did not want anything financial from the other as they had lived separate lives for over a decade albeit under the same roof (rented accommodation) but had built up their own asset profile since separation and they were both working and earning a good income. Their needs were met at the present time.
They had children together, all over 21 years of age. One spouse was in a long term relationship and although not yet engaged they had plans to marry in the not too distant future. I was asked whether they needed to enter into a clean break consent order, in light of the private agreement they had reached between them.
A private agreement whether confirmed in writing or not, is not a formal agreement and it will not be legally binding. Such private agreements between spouses do not bind the court therefore either spouse is free, even after the divorce has been finalised (Decree Absolute has been granted) to file an application at court seeking a financial claim against the other.
In light of the fact that neither spouse wishes to make a financial claim against the other, they may decide that they trust the other enough, causing them to feel that a clean break consent order is not necessary, however there is always a small risk in such circumstances that if one spouses’ financial circumstances change in the future, it may cause a financial claim to be made regardless of the private agreement reached. There is no time limit for making a financial claim, even many years after the final divorce (the final divorce certificate is the decree absolute) a financial application can be made, unless you re-marry prior to making a financial claim in relation to your previous marriage. This re-marriage will bar you from making a financial claim, but it will not bar your ex-husband from making a financial claim, in the event that he has not re-married.
You may feel confident right now that your spouse would never make a financial claim against you, but circumstances can change in the future. For example, one of you may become ill and unable to work or one of you may receive an unexpected inheritance or may win the lottery. Things can change in the future which may result in one making an unforeseen claim against the other for money.
If you do not enter into a clean break consent order which is approved and sealed by the court, then the door is left open for either spouse to make a financial claim against the other at anytime in the future. But one must bear in mind that the court would consider the merit of the application and claim and it does not mean that just because an application can be made, it will be successful. The court would take into consideration many factors including the period the parties have been separated and the financial position of the parties at the time the application is made as well as at the time the parties separated and divorced. Simply because a financial claim is made does not mean that it is going to be successful at court. In order to advise on the likelihood of success of any potential claim or advise as to what you or your spouse are entitled to in terms of finances from the other, I would seek to obtain and then consider full and frank financial disclosure from both parties.
You can only achieve certainty that all future claims have been dismissed through a financial clean break consent order. The process involves a clean break consent order being drafted and agreed between the parties and then once signed by both parties it will need to be filed at court with all the necessary supporting documentation and a small court fee. The consent order must be accompanied by a statement of information form (both parties must complete their own relevant sections on the form). The consent order will not be considered by the court without this. Once the order has been approved and sealed by the court, it is legally binding and full and final. All potential future claims will be dismissed forever with no future comeback.If you need legal assistance or advice with any matrimonial related matter then contact our family law specialist solicitor, Mrs Satvinder Sokhal on 020 8280 2710.