Understanding the concept of a ‘clean break’

The Family Law (Scotland) Act 1985 sets out a framework designed to divide matrimonial or civil partnership property fairly between all parties, and to provide a clean break as much as possible. As a result, divorcing spouses should agree to cut off financial obligations towards each other after the divorce is finalised. This means that once the divorce order is in place, neither party can make future monetary claims against the other - and, therefore, they obtain a clean break. It provides certainty and allows both individuals to move forward with their lives independently of one another.

What are the benefits?

A clean break allows both parties to achieve economic independence. There’s no lingering connection through ongoing payments or financial ties, which can bring peace of mind. Once the terms of the divorce are agreed upon and approved by the court, neither party can return to make further claims, providing a sense of closure.

Spousal maintenance

If one spouse has been financially dependent on the other during the marriage, they may still require ongoing monetary support through spousal maintenance. This can sometimes lead to future disagreements, especially if circumstances change and one party sees a large increase or decrease in their finances.

The Family Law (Scotland) Act 1985 section 9(1)(b) addresses the issue of economic advantage gained by one party as the result of contributions made by the other, as well as economic disadvantages suffered by one party in the interests of the other or family. Where possible, a clean break is still the preferred method of separating finances and, therefore, issues of previous financial dependence will be taken into consideration. 

Arrangements can also be more complex, particularly when pensions or business interests are involved.

Pensions often form a significant part of matrimonial assets, and in some cases, it may be more beneficial for one spouse to receive a share of the other’s pension, as opposed to maintenance payments. As a result, divorce terms can include a pension-sharing order, where pensions are split as part of the final settlement. The same can be true of shared business assets.

Child maintenance

The holy grail of a ‘clean break’ only applies to financial claims between spouses and does not affect child maintenance payments. Parents are usually required to pay their fair share towards the upbringing of children. 

Finalising divorce

Divorce requires careful negotiation and legal expertise to ensure all assets are properly accounted for and fairly divided. Indeed, if a divorce is sought and granted, that ends matrimonial claims and obligations; so, before asking the sheriff to grant the final order, you and your spouse will need to agree on how to divide your assets, including property, savings, pensions, and any business interests.

Once you have reached an agreement, either on your own or with the help of a solicitor, you can apply to the court to approve the divorce. This will formalise the agreement and prevent either party from making future financial claims.

Legal advice is crucial

It can be hugely helpful to seek expert legal advice when considering divorce. A solicitor specialising in family law can guide you through the process and ensure that your settlement is fair and legally binding. After all, it’s essential to fully understand your financial situation and the long-term implications of giving up the right to future claims on your ex’s assets.

So although a ‘clean break’ divorce is not a term you’ll hear many a solicitor use, it is in fact, exactly the sort of arrangement that most will be aiming for on behalf of their clients.