Marriage brings with it mutual obligations to maintain, which can continue long after the marriage is dissolved, unless brought to an end by an order of the court. This can create unfairness and will often be a barrier to the parties re-building their lives. The court is therefore required to consider making a clean break order thereby severing all financial ties whenever this is possible. A clean break can never apply however to children, and the obligation to maintain (and the parental responsibility) for children is unaffected by the parents’ divorce.
The modern approach to ancillary financial matters on divorce was put by Lord Scarman in Minton v Minton. He said:
‘An object of the modern [divorce] law is to encourage [the parties] 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, for a clean break rather than a ‘meal ticket for life’ approach.
There are two main ‘clean break’ models relevant to property, the latter being most appropriate when there are young children to be housed:
- For the matrimonial home and any other major family asset to be sold and the net proceeds divided between spouses, not necessarily on a 50/50 basis. An alternative to a sale is for one party to buy out the other, although this could not be ordered by the court.
- For the property to be transferred to one spouse (usually with the other being released from the mortgage) on the following basis:
* Outright either (a) with no payment to the departing spouse. Any unfairness can be offset by relieving the party losing his or her house share from any ongoing maintenance obligation, or (b) by way of a cash payment from the spouse acquiring the others interest to the other spouse in order to put towards acquiring a new property.
* Retaining an interest, i.e. by the departing spouse keeping a percentage interest in the equity of the property to be received in the future upon the sale of the property.
The postponed sale could be triggered by an event such as the youngest child attaining the age of 17 or finishing full time education, or the resident spouse remarrying or cohabiting. This is known as a ‘Mesher’ order.