The Clean Break Flashcards
Which S states that the court have a duty to consider the clean break
S 25A (1)
What can the parties not do after a clean break
return to the court with the same issues
What will happen if a lump sum is paid (Immediate)
no periodical payements can be made as this would not facilitate a CB
what are the likely orders to be made in an immediate clean break
lump sum, property adjustment e.g. transfer or order for sale, pension provisions e.g. sharing order or off-setting where capital assets awarded to compensate for a lack of pension
Suter v Suter:
Difficult to predict whether the parties will be financially independent- a clean break is not appropriate.
Which sections concern a immediate clean break
S 25A(1) and (3) MCA
What sections concern a deferred Clean Break
S 28(1A) MCA sets out a determinative period and the R will not be permitted to apply for a variation at the end of periodical payment for a non-extendable period
Waterman v waterman
This provision should be used sparingly. Draconian power to limit someone’s ability to apply to vary an order of maintenance.
Rehabilitative clean break section
S 25 A (2) MCA provides for maintenance for a set period of time so that parties Cana just and become self-supporting
Barrertt v Barrett
If there is such an order ^, the wife had an obligation to tell her husband if during the period of receiving maintenance she got a job, so that her husband could apply to the court for a clean break.
McFarlane; Palour
shouldn’t be for her to go back to court to say it is necessary to pay, but rather it should be the payer (husband) who goes back to court to say it is no longer necessary to pay.
What case set out when a Clean Break could be re-opened
. Clean break can be re-opened when (1) a fundamental assumption on which the order was made has been invalidated by events (2) this happened within a relatively short time of the order being made (3) application to re-open the order was made promptly, and (4) grant of leave to re-open the order that would not prejudice either party
Williams v Lindley
this was a good reason to re-open the clean break
When would a Clean Break not be appropriate
where there is not enough resources- therefore indefinite periodical payment order where it will be for the payor to seek variation or dishcarge
