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I just want a clean break, do I need a solicitor?

In a divorce, separating your finances is the issue with the most scope for challenges and disagreements. It is understandable to want to cut ties and have a clean break from your former husband or wife. A clean break is often the best course of action and the court will always consider whether a clean break is possible in every case. However, it is not always possible and it is not always advisable.

Can’t we just sort this out by agreement?

Separating you and your spouses’ finances by agreement is without doubt the best way to go. This saves all the stress and all of the costs of legal proceedings. However, even where you agree on absolutely everything, you still need the court to give that agreement the final sign off. This means writing out the agreement that you have reached and sending it to the court together with a short form explaining your financial circumstances.

Why do I need the court to approve our settlement?

Until the court has approved the agreement you reach, it is open to either you or your spouse to back out and say you want to do something different, or ask the court to decide what should happen at a trial.

In the most famous case, the husband and wife divorced in 1991 when they were both living in a caravan but did not get the court to approve their financial separation. The wife then went back to the court and asked for a trial in 2013, 22 years later, during which time the husband had set up Ecotricity and become a multimillionaire. The court said that it was still possible to make an order about their divorce, even 22 years on, because the parties had not had their financial separation approved by the court.

Ok, I will send the agreement to the court, can I have a clean break now?

The court does not just rubber-stamp the agreement. Instead, a judge looks at the agreement you have reached and decides whether or not it is fair in the context of your finances. The judge has to look at what income and assets you and your spouse will have after the agreement is put into effect. Even if you, your solicitor, your spouse, and their solicitor agree on a course of action, a judge may decide that it isn’t fair and refuse to approve it. If you want a clean break from your spouse then the agreement will need to work so that each party can meet their needs after separation.

What about if we have children?

If you and your spouse have children who are still under 18 or in full-time secondary education then a clean break probably won’t be possible. The parent who the children spend time with is entitled to statutory maintenance from the other parent whatever other factors there might be about the divorce. This is calculated online on the Government website here. More broadly, the court must always ensure that minor children are provided for on any divorce. Even if you and your spouse agree to a clean break, there will probably need to be an ongoing option to change this so that either of you can apply for maintenance from the other if it is needed for the children.

What if I need further advice?

The best way to make sure that the agreement is approved by the court is to take legal advice from a solicitor about what the court will see as fair in your circumstances. Everyone’s case is different because everyone’s life is different. We have an experienced team of solicitors who will be able to assist you with any queries you might have.

If you would like to make an enquiry, please telephone 0208 232 9560 and we will be happy to help.

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