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Many people believe that their divorce is financially final once they receive their Final Order (previously known as the Decree Absolute). However, if financial matters have not been resolved, remarrying can have serious consequences.
This is known as the “remarriage trap”.
The remarriage trap is one of the most serious and least understood issues in family law in England and Wales. It can affect someone who remarries or enters into a new civil partnership before obtaining a court-approved financial settlement or making a valid application for financial remedies arising from their previous marriage.
Remarriage can permanently prevent a person from applying for certain financial orders against their former spouse, although not every possible claim is lost. Understanding the remarriage trap is essential for anyone whose divorce finances remain unresolved.
What Is the Remarriage Trap?
The remarriage trap arises under the Matrimonial Causes Act 1973.
If someone remarries or enters into a new civil partnership after divorce, they will usually lose the right to apply against their former spouse for certain financial orders unless they have already made a valid financial remedy application before the remarriage takes place.
It is important to understand that it is not enough to have discussed finances with your former spouse, instructed a solicitor, exchanged correspondence, or intended to make a claim. A formal financial remedy application must have been issued at court before the remarriage in order to preserve certain claims.
This can affect claims including:
- Property adjustment orders, including orders relating to the transfer, settlement or variation of property arrangements;
- Lump sum orders requiring a former spouse to make a capital payment;
- Periodical payment orders, including claims for ongoing spousal maintenance;
- Certain pension attachment orders.
Pension sharing orders are generally treated differently and are not usually prevented by the remarriage bar. However, the interaction between pensions and remarriage can be complex and specialist advice should always be obtained.
Many people fall into this trap because they assume that the divorce process automatically deals with financial matters or that they can resolve finances at a later date. However, there is no grace period. Once you remarry or enter into a new civil partnership, certain financial claims may be permanently lost if they have not already been protected.
Which Financial Claims Are Affected by the Remarriage Trap?
The remarriage trap does not remove every possible legal right, but it can prevent access to important financial remedies available under the Matrimonial Causes Act 1973.
Claims that may be affected include:
- Property adjustment orders — These include orders relating to the transfer of property, settlement of property, or certain changes to existing property arrangements.
- Orders for sale — connected with property adjustment proceedings
- Lump sum orders — A lump sum order requires one spouse to make a capital payment to the other. This may be relevant where one party requires a payment to achieve a fair financial settlement.
- Periodical payment orders — including new claims for ongoing spousal maintenance
- Secured periodical payment orders — maintenance secured against specified assets
- Spousal maintenance claims — A person who remarries is normally prevented from making a new application for periodical payments or secured periodical payments against their former spouse if no valid application was made before remarriage. Where someone is already receiving spousal maintenance under a court order, those payments will normally end automatically upon remarriage.
- Pension claims — Pension issues require careful consideration. While pension sharing orders are generally not caught by the remarriage bar, pension attachment orders may be affected. Anyone with unresolved pension issues should obtain specialist advice before making decisions about remarriage.
What Financial Claims Survive Remarriage?
Although remarriage can significantly restrict financial remedies against a former spouse, some options may remain available.
- Child maintenance – Remarriage does not affect a parent’s responsibility to financially support their child. Most child maintenance arrangements are dealt with through the Child Maintenance Service (CMS), although the family court can still deal with certain matters, including school fees, disability-related expenses and some top-up maintenance cases.
- Schedule 1 of the Children Act 1989 – A parent may still be able to apply for financial provision for the benefit of a child under Schedule 1 of the Children Act 1989.
This can include applications for:
- Lump sums;
- Property transfers; and
- In some circumstances, periodical payments.
These claims are separate from divorce financial remedies and are not generally prevented by remarriage.
- Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) – Where former spouses continue to jointly own property or dispute ownership, TOLATA proceedings may allow the court to determine ownership interests or make orders regarding the sale of property.
However, TOLATA proceedings deal with existing property rights. They cannot usually be used as a way of reopening a divorce financial settlement or redistributing assets that could have been dealt with through financial remedy proceedings.
These options are generally much more limited than the financial remedies available under the Matrimonial Causes Act 1973 and should not be viewed as a replacement for resolving finances before remarriage.
How to Avoid the Remarriage Trap
The best way to avoid the remarriage trap is to take legal advice before remarrying and ensuring your financial
claims have been properly protected. A financial remedy application is a formal request to the family court to decide how finances, property, pensions and maintenance should be divided after a divorce and it is important to establish whether this has already been issued before remarrying. If an application has not been made, it may be necessary to issue the appropriate financial remedy application before the date of the new marriage or civil partnership. An intention to make a claim or an informal request does not preserve financial claims.
You do not have to obtain a final financial order before remarrying, as long as you have made a financial remedy application before the new marriage or civil partnership. That application can usually continue after you remarry. However, remarriage may still affect how the court assesses your financial needs and circumstances, and any spousal maintenance you receive from your former spouse will usually end when you remarry.
Securing a Consent Order Before You Remarry
If you reach an agreement with your former spouse, it is usually best to have it approved by the court before remarrying through a consent order. A consent order makes your financial agreement legally binding. It can provide a clean break or set out ongoing financial arrangements, depending on what has been agreed. Having a consent order in place before remarriage can help protect your legal position and reduce the risk of future disputes.
What If You Have Already Remarried?
If you have already remarried without obtaining a financial order, urgent legal advice is required. If you remarry before making a financial remedy application, you will usually lose the right to claim financial provision or a property adjustment order against your former spouse. However, pension sharing orders are not usually affected, and separate claims may still be available in relation to children or jointly owned property. Specialist legal advice should always be sought.
The Remarriage Trap and Civil Partnerships
Equivalent restrictions apply following the dissolution or annulment of a civil partnership under the Civil Partnership Act 2004. Anyone intending to enter a new marriage or civil partnership before resolving financial matters arising from a previous civil partnership should obtain specialist legal advice.
Why Early Legal Advice Is Essential
Many people are unaware that remarrying without a financial order or a valid pending application can extinguish valuable claims for maintenance, lump sums and property adjustment.
If you are going through a divorce, planning to remarry or concerned that remarriage may have affected your financial position, it is important to take specialist family law advice promptly. Our family law solicitors advise on divorce financial settlements, whether financial claims have already been validly preserved, the steps to take before remarriage and the limited remedies that may remain available after remarriage.
Planning to remarry before your divorce finances are resolved? Contact Duncan Lewis to speak with a specialist family law solicitor about protecting your position before the new marriage or civil partnership takes place.
You can also learn more about financial settlements in divorce here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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