The remarriage trap - what is it and why is it so important?

After the Decree Absolute has been granted, your financial claims against your spouse remain open; either party can make a financial claim against the other at any time in the future. However, if you remarry or form a civil partnership before resolving the finances, you may be prevented from making a financial claim in the future. This is known as the remarriage trap.

Section 28 (3) of the Matrimonial Causes Act 1973 (‘MCA 1973’) states as follows:

“If after the grant of an order or decree dissolving or annulling a marriage either party to that marriage remarries whether at any time before or after the commencement of this Act or forms a civil partnership, that party shall not be entitled to apply, by reference to the grant of that order or decree, for a financial provision order in his or her favour, or for a property adjustment order, against the other party to that marriage.”

In summary, the party that has subsequently remarried is debarred under section 28(3) from making a financial claim.  If a party made an application for financial relief prior to remarrying, their position is protected.

The case of Wyatt v. Vince [2016] EWHC 1368 (Fam) established that there is no time limit when the financial claim can be brought. In this case, the wife issued financial proceedings against husband some 19 years after the decree absolute was granted. Parties’ financial circumstances were modest at the time and so she felt no need to do so at the time, however, many years after the parties divorced, the husband established a successful business with an estimated value of £57 million.  The court has allowed her claim.

The case of E v E [2008] is another example of the dangers that the remarriage trap can pose and what Singer J called the “elephant trap of premature remarriage”. In this case, the parties reached the agreement in which the wife, who held the bulk of the wealth in the marriage, was to pay the husband a lump sum of £250,000. The husband’s solicitors filed a Consent Order with the Court for approval; however, this was done three days after the husband had remarried in Bali. The Court refused to approve the Consent Order and the wife was not required to pay the husband any money.

The above cases clearly demonstrate that it is imperative to either finalise financial matters before remarriage or make an application before remarriage.

You can sever the financial ties with your spouse by obtaining a Consent Order, which sets out the agreement between you and your spouse in respect of the finances, and having this Order approved by the Court. If this is not possible, then an application for Financial Relief should be filed with the Court prior to remarrying. If you were the petitioner in the divorce, and you have remarried, you may still be entitled to make a claim against your former spouse, provided all the relevant claims were ticked on the divorce petition. This effectively means that your financial application was made on the issue of divorce petition and before your remarriage.

In circumstances, where remedy cannot be pursued under the MCA 1973, another potential route would be a claim under the Trusts of Land and Appointment of Trustees Act 1996 in relation to jointly owned property.

If you wish to discuss any of the above issues in further detail, please contact Barbara Bitis on 07927 191 382.