An essential read for those considering remarriage and have unresolved finances from a previous marriage.

What is the remarriage trap?

In a divorce or dissolution application, the applicant or applicants can apply to open any financial claims by confirming that they want to apply for a financial order. However, the court will not take any action at that stage, and to formally start financial proceedings an applicant will need to complete a separate application for a financial order.

If an applicant opts not to open a financial claim in their initial application, they can still make the application for a financial order. However, this right only exists to the point that they remarry or form another civil partnership.

Once the divorce or dissolution application is issued, the respondent (if it is not a joint application) can formally start the financial proceedings to apply for a financial order but again only until they remarry or form another civil partnership.

This is known as the 'remarriage trap' and in these circumstances once the final order of divorce or dissolution (previously decree absolute) is granted, if a party remarries or forms another civil partnership, they cannot apply for a financial provision or property adjustment order against the other party to their previous marriage.

What financial orders can be applied for?

Financial provision orders include orders for:

  1. Periodical payments;
  2. Secured periodical payments — periodical payments secured by a capital deposit;
  3. Lump sum provision; and
  4. Pension attachment.

Property adjustment orders include orders to:

  1. Transfer property from one party to the other;
  2. Settle property for the benefit of one or both parties; and
  3. Vary a nuptial settlement for the benefit of one or both parties.

A party who remarries does not lose their entitlement to apply for a pension sharing order and an application for a pension sharing order can be made by a party who has remarried.

Timing

Although remarriage may prevent one party from making financial claims, there is no time limit for the party who has not remarried to make an application for a financial order. The subsequent proceedings may include the remarried party's new spouse being compelled to disclose details of their finances.

If a party makes a valid application for a financial order before they remarry that application may proceed after they have remarried.

If an applicant to the divorce application has remarried and has not confirmed that they want to apply for a financial order they are prevented from now applying for a financial order or property adjustment order. However, they may still apply for a pension sharing order.

Similarly, if a respondent to the divorce application has not made an application and remarries, they are prevented from now applying for a financial or property adjustment order. They may still apply for a pension sharing order.

Important issues to consider

If you are thinking of making a financial application against your ex-spouse or ex-civil partner and have remarried, or are thinking of remarrying, it is important you ask yourself the following questions:

  1. Were you the applicant or respondent in the divorce or dissolution application?
  2. If you were the applicant, did you confirm in the divorce/dissolution application or subsequently that you wanted to apply for a financial order?
  3. If you were the respondent, have you made an application for a financial order?

Please see the flowchart for when you may or may not be able to apply for a financial order.

What will the court consider if I have remarried and subsequently make an application for a financial order?

When considering an application for financial orders, the court exercises its discretion, considering several factors. These include the financial resources available to the parties. The court is also likely to take into account the resources of a new spouse that may be available to the remarried party, and which may, therefore, reduce the remarried person's financial needs.

What are the options if you have remarried and can no longer make an application for a financial order?

  1. As mentioned above, a remarried party can still make an application for a pension sharing order.
  2. If there is property, a remarried party can make a claim under the Trusts of Land and Appointment of Trustees Act 1996 (TLATA) or an application under the Married Women's Property Act 1882.
  3. A Schedule 1 Children Act 1989 claim for financial provision for the benefit of a child can also be made in limited circumstances.

Can a remarried party obtain an order from an unmarried parties' application for a financial order?

If an unmarried party makes an application for a financial order the court can make an order in those proceedings in the remarried parties' favour. However, a remarried party cannot rely on an unmarried party making an application for a financial order, especially if it is not in their interest to do so, particularly, if they remain living in the family home or are the financially stronger party.

If you are keen to remarry it is important that you give serious thought as to whether you may fall into the 'remarriage trap' and whether you should apply for a financial provision first. This is a complex area, and it is important that you seek legal advice from a family law specialist.

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.