Clean Break Consent Orders – are they worth it?

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This case really emphasises the position that when obtaining a divorce, even where the assets are small, it is critical to finalise financial matters as well. If you choose not to do so, then you leave yourself open to an opportunistic claim even decades into the future.

A “Clean Break Consent Order” can mean slightly different things in different circumstances. In essence it means that, on the conclusion of a divorce, neither spouse can make any further financial claim against the other under the Matrimonial Causes Act 1973. A common challenge for matrimonial solicitors is to convince their client that a clean break consent order is sensible in a divorce where there are few, if any, assets. From a client’s perspective, it can sometimes seem like a waste of money to agree an order to the effect that neither spouse has a claim against the property of the other when, at the time of the divorce, neither person has any significant assets anyway.

A recent case has emphasised why it is so important to secure this protection when divorcing, even where there are no significant assets. The case of Vince v Wyatt concerned a couple who married in 1981, and separated in 1984. It took the parties some time to resolve the paperwork, with the divorce finally being concluded in 1992. No financial order was made at that time, apparently on the basis that there were few assets to divide.

In the following years, Mr Vince made a significant amount of money in the “green energy” sector, via a business which he set up after the divorce was finalised. In 2011, some 27 years after their separation and 19 years after their divorce was finalised, Ms Wyatt made a claim for various financial orders against Mr Vince worth a total of £1.9m. She also sought an order that Mr Vince pay her legal fees in seeking this financial order. Unsurprisingly, Mr Vince applied for her claim to be dismissed.

The matter was argued right up to the Supreme Court, who decided that Ms Wyatt was entitled to make her application. They also ordered Mr Vince to make a monthly payment to her solicitors, to cover her legal fees, and referred the matter back to a lower court to assess the correct financial award to make to Ms Wyatt. Earlier this year, the matter was settled on the basis of a lump sum payment by Mr Vince of £300,000 – an awful lot more than the cost of a solicitor preparing a clean break consent order! Although those figures were not published, it can be safely assumed that Mr Vince’s legal figures in fighting the case up to the Supreme Court were well into the tens of thousands of pounds over those 5 years.

Euan McLaughlin is a family lawyer dealing with divorce, financial and children matters and is based at Sills & Betteridge LLP, Lincoln

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