A fundamental aspect of marriage is that it brings a mutual obligation for the parties involved to maintain each other. This continues after the marriage is dissolved unless it is dissolved through a specific order of the court called a Clean Break Order.
This obligation to maintain each other can mean unfairness, and often, it will slow the recovery that is needed after marriage, meaning the people involved will re-build their lives slower. This will all be taken into account when the court considers granting a Clean Break Order which will sever all financial ties. However, parental responsibility and the obligation to maintain children is not affected by this order.
This is a Modern Approach to Divorce and financial matters revolving around divorce. It was said by Lord Scarman:
“An object of the modern law is to encourage the people involved to put the past behind them and to begin a new life which is not overshadowed by the relationship which has broken down.”
In other words, it is important to move on from the past financially as well as mentally.
Clean Break Orders when Property is involved.
There are two different models that the Clean Break Order will follow which is relevant to property:
1. This model is appropriate when there are no children involved. The property will be sold off. The proceedings from the sale will be split between the spouses. Not always on a 50/50 basis, depending on what the court considers fair under the circumstances. This opens up to the possibility of one of the parties purchasing the other parties shares in the property.
2. This is for when there are children involved as it involves the property remaining in the family possession, so the child does not have to move. The property is transferred to one spouse, usually with the other spouse being released from the mortgage. This will be done on any of the following methods:
· Outright transfer. This can mean that there will be no payment which will be followed by maintenance payments in return for sake of fairness, or by way of one lump sum cash payment in payment for the new property.
· Both parties retain an interest in the property. The departing spouse will keep a percentage interest so they will receive payment when the property is sold in the future. This sale can be planned for events such as the youngest child turning 17 or leaving full time education, or the family moving out. This is known as a Mesher Order.