Clean Break Consent Orders

I trust my spouse…we are in the process of divorcing but do I really need a clean break consent order?

Family Solicitors often get asked if there is a real need for divorcing parties to enter into a clean break consent order if they are all amicable. A Google search will provide you with multiple, but contradicting, answers.

So you may ask, what is the big deal with entering into a clean break consent order? What is the purpose of this, other than more legal costs being incurred?

It is suggested that once the parties obtain a Decree Absolute of their divorce that this dismisses the parties’ financial claims against each other. This is not true. It is only true if, before applying for the Decree Absolute, the parties have a Financial Consent Order sealed by the Court.

In the absence of a sealed Financial Consent Order, the claims between divorcing parties remain open and there is no time limit for either spouse to bring a claim against the other. This situation is thought to be unsatisfactory in that it creates a degree of uncertainty because it leaves the possibility of one spouse making a claim against the other at any time, and this is why solicitors recommend that Financial Consent Order be sought.

The recent case of Wyatt v Vince in 2015 highlights the importance of entering into a sealed Financial Consent Order to settle all claims between parties in full and final settlement. A brief summary of the case is as follows:-

• Ms Wyatt and Mr Vince were married on 18 December 1981.
• They had a son and Mr Vince also treated Ms Wyatt’s daughter from a previous relationship as a child of the family.
• They separated in 1984 after 3 years of marriage.
• For around 8 years after separation, Mr Vince pursued a new-age travelling lifestyle and left Ms Wyatt to bring up the children and made no substantial financial contribution for them.
• They divorced and their Decree Absolute was granted on 26 October 1992.
• From the late 1990s, Mr Vince’s green energy business took off and he became a multi-millionaire.
• In 2001, the couple’s son went to live with Mr Vince whilst Ms Wyatt’s financial circumstances continued to be, and remain, very modest.
• In 2011, Ms Wyatt made an application in the divorce proceedings for financial provision in the form of a lump sum and applied for interim payments to fund her legal costs. Mr Vince made a cross-application for Ms Wyatt’s application to be struck out but on 14 December 2012, but the deputy High Court judge dismissed Mr Vince’s strike out application and ordered him to make interim periodical payments in respect of legal costs directly to Ms Wyatt’s solicitors
• Mr Vince successfully appealed to the Court of Appeal to have the deputy High Court Judge’s order set aside. The Court of Appeal struck out Ms Wyatt’s application for financial provision and ordered her to repay part of the periodical payments she had received.
• Ms Wyatt subsequently appealed to the Supreme Court and the Supreme Court unanimously allowed the appeal and directed that Ms Wyatt’s application proceed in the Family Division of the High Court. The deputy judge’s costs allowance order was restored and the Court of Appeal’s order set aside.

Although Mr Vince may have had to pay a bit more in legal costs to have a Financial Consent Order drawn up back in 1992, when the divorce was going through, in hindsight, it would have been more cost effective for him to do so to prevent this claim from Ms Wyatt.

Trainee Family Partner, Simon Immins concludes, "To summarise, until a sealed Financial Consent Order is entered into, divorcing parties’ respective claims against the other will remain open even after the Decree Absolute, up until the point that such an Order is made." Therefore, if one party’s financial situation improves dramatically, like Mr Vince’s, and the other party’s financial situation deteriorates after the Decree Absolute, then the party in the weaker position can still apply to the Court for a financial remedy.

The financial claims which may be made against the other are any or all of the following:

• Maintenance (income payments);
• Adjustment of property ownership (transfer of a house from one party to the other);
• Lump sums (capital payments); and/or
• Pension sharing.

At Frettens, we promote an amicable divorce approach but it is in neither party’s interests to store up disputes for a later date. To protect yourself and if you are looking to divorce or currently in the process of divorcing your spouse, we strongly recommend that you enter into a Financial Consent Order settling all claims between yourselves.

Our Family Team, based in Christchurch, also cover Bournemouth, Poole and the New Forest. For a free initial chat, please call 01202 499255 and Simon or a member of the team will be happy to discuss any questions that you may have.