The Remarriage Trap: Why Saying “I Do” Again Too Soon Can Cost You

This is one of the most critical, yet frequently misunderstood, areas of family law. Here is what you need to know to protect your future.

What is the Remarriage Trap?

Many people mistakenly believe that if the court grants a Final Order (formerly known as a Decree Absolute) in divorce proceedings, their marriage, is over and all ties, financial or otherwise, are automatically severed and at an end. This is perhaps the logical way of interpreting the consequences of a Final Order, but it is not correct. In this respect, the divorce has nothing to do with the finances.

Golden Rules:

• A divorce ends your marriage, but it does not, of itself, end the financial relationship between the ex-spouses, nor does it eliminate the financial obligations ex-spouses may have toward each other and toward the children in any particular case; and
• Any failure to conclude financial matters formally, via a financial court order, also leaves your estate open to claims from your ex-spouse if you die before they do.

The legal position is clear in that only a financial order made by, or approved by, a Judge can definitively bring an end the parties rights to make financial claims against the other arising from the marriage. Most of the time these financial orders are made at the same time as the divorce.

If, however, you divorced someone in the past but failed to secure a financial order arising from that relationship and you then remarry, in certain circumstances, you could fall into the remarriage trap. If you do, then this may result in you losing your right to ask the court for financial support from your ex-spouse.

How the Trap Works: “A Tale of Two Spouses”

To understand how the trap can come into being consider this common scenario:

• The Divorce: Sarah and Tom get a Final Order of divorce. They decide to sell the family home later, when the kids are older, but they never bother obtaining a formal financial order directing them to do this because they "get along well."

• Remarriage: Two years later, Sarah meets someone new and happily remarries. She can legally remarry because she is divorced.

• The Trap Springs: Because Sarah remarried without resolving her financial claims against Tom, via a court order, she has potentially walked straight into the trap.

• Sarah has potentially lost the ability:
  • to apply to the court for lump sum payments from Tom;
  • to claim a property adjustment order (e.g. forcing the sale of the old family home or claiming a share of its equity); and
  • to claim spousal maintenance.

She can still apply for one form of financial relief however, and, in this regard, see below.

• What about Tom: Because Tom did not himself remarry, his rights remain completely intact without any time limitation. He can still freely pursue all legal financial claims against Sarah, through the court, if need be. Tom can apply for a share of her assets, whenever acquired, including her new home, or for e.g. her savings, subject to the court’s discretion. The remarriage can therefore create a huge, one-sided disadvantage for Sarah.

• The Exceptions to the Rule: The trap is unforgiving, but there is one situation where, despite a remarriage, the trap does not apply at all to the person who remarried, and even if they are barred by the trap, the remarriage will not prevent the remarried party making a very limited financial claim:
  • If, in our example, Sarah had formally declared in her original divorce petition that she will be seeking a financial provision order against Tom, she can later make a claim, in full, even if she has remarried. Accordingly, the simple act of ticking the standard box in her petition to declare a financial claim will be made by her preserves her rights to claim later, even years later, after the divorce has come through; and
  • Pension sharing claims are never extinguished even if a claiming party has remarried and is caught in the trap, having failed to declare a claim for financial relief in the divorce petition as at i) above. However, having to rely on this one claim alone will almost never afford a remarried party the ability to seek a fair financial settlement.

How to Protect Yourself

In summary, because the remarriage trap was created by an act of parliament divorce Judges do not have a discretion to disapply or ignore its effect and allow a claim to proceed however unusual the circumstances and even if the trap will cause severe hardship to the remarried party.

However, avoiding the remarriage trap is entirely within your control, provided you take action before making any new wedding plans.

If you would like any more information in respect of potential issues that can arise when marrying a new partner after a previous divorce, then please feel free to contact our family law team at Heald Solicitors.

Kindly note this article is a general statement of the law. It should not under any circumstances be relied on as advice in any particular case. The reader should always take their own independent advice from a solicitor.