Family Law: Clean Break Orders, Matrimonial Home and Challenging Orders

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What is a Clean Break order?
A once and for all final order which ends all ongoing financial responsibility between the parties, causing financial responsibilities between the parties to end
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Can you appeal a Clean Break order?
There are limited grounds of appeal
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Why is a Clean Break order important?
It moves away from the idea of 'meal ticket for life' mentality
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What do the courts try to achieve?
A clean break through fair distribution of assets, avoid parties paying monthly for decades
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What can a court do instead of a Clean Break order?
A nominal award, e.g. a £1 each month
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What did Baroness Hale state about Clean Break orders?
It is logical to retreat from the principle of a lifelong obligation
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What is a case example on when Clean Break orders should be used?
Matthews v Matthews: clean break orders should be used where possible
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What are some case examples of where a Clean Break has been used?
Robson v Robson (husband unreliable), A v L (neither party had any money), Murphy v Murphy (spouse could afford a lump sum)
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What are some advantages of a Clean Break?
1. Parties are free to pursue their own careers. 2. Emotional reasons. 3. Lump sums are better if a party wishes to re-marry. 4. Avoids the problems of hardship in the future
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What is a disadvantage of a Clean Break?
Whatever befalls the party, they cannot reopen the court order
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What situations is it appropriate to award a Clean Break?
1. When continuing support offers no benefits. 2. In short, childless marriages. 3. The wealthy. 4. Where both parties are financially independent. 5. Where there is antagonism between the parties.
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What is a case example of when continuing support offers no benefits?
Ashley v Blackman (where parties have no money)
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What is a case example of where both parties are both financially independent?
Burgess v Burgess: where there is antagonism between the parties
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What situations is it inappropriate to award a Clean Break?
1. Where there are young children. 2. Where there is uncertainty over the financial future of one party. 3. Where there is a lengthy marriage. 4. To achieve fairness.
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What is the court's attitude towards the Matrimonial home?
It is the most valuable and biggest asset for most couples, the home is a major consideration
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What is the courts primary consideration?
A home for the children, and then a home for the other party.
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What are the options for the court to reduce the unfairness caused by one party staying in the Matrimonial home?
1. Selling the house and dividing the proceedings. 2. Transfer the house/a share. 3. Postpone the sale until a specified event. 4. Mesher orders.
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What is a Mesher order?
Where a house is put on trust for certain shares for the couple, it is postponed until a triggering event e.g. a child turning 18
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What are some problems with Mesher orders?
1. They store up problems for the future. 2. They go against the clean break ideal. 3. Only appropriate when enough money to rehouse in future. 4. Promotes communication between parties. 5. End of education doesn't mean end of needing housing
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What is a case example on a Mesher order?
Mesher v Mesher
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What is a case example of problems with Mesher orders?
Clutton v Clutton
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What is a Martin order?
It is similar to a Mesher order, but the wife can stay in the home for as long as she wishes (e.g. until she dies or remarries)
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What is a Consent order?
Couples are free and encouraged to form their own agreement e.g. using mediation and negotiation
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What implications does a Consent order have?
It means that the legal bills are lower
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What will the court consider within a Consent order?
If the terms are reasonable, considers all S25 factors, can refuse go rant effect to the agreement, the court is NOT INTERESTED in the finer details
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What is a Separation Agreement?
An agreement made in contemplation or following separation which seeks to make financial arrangements for the period of separation and any subsequent divorce
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What are the courts views on Separation agreements?
Historically, they were viewed different to pre-nups because the relationship had already run its course
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How can parties challenge a Financial order?
1. Apply for a rehearing. 2. Appeal or apply to have the order set aside (e.g. procedural irregularity) 3. Apply for a variation or a discharge
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What is a variation or discharge of an order?
Allows a court to vary/discharge or suspend any provision contained with an order
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What does variation or discharge of an order apply to?
Maintenance pending suit, periodical payments, lump sum by instalments, deferred lump sum, orders for sale of property and a pension sharing order
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What situations can induce a variation or discharge of an order?
Where a salary has changed, new partner, ill health
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What is a case on what the law now encourages?
Minton v Minton: law now encourages to avoid bitterness after a family-break down and the object of modern law is to put the past behind them
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Other cards in this set

Card 2

Front

Can you appeal a Clean Break order?

Back

There are limited grounds of appeal

Card 3

Front

Why is a Clean Break order important?

Back

Preview of the front of card 3

Card 4

Front

What do the courts try to achieve?

Back

Preview of the front of card 4

Card 5

Front

What can a court do instead of a Clean Break order?

Back

Preview of the front of card 5
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