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Expertise
10th October 2023

The remarriage trap

The remarriage trap
Constance Tait
Constance Tait
Associate

The divorce process is now largely carried out online and more and more couples are sorting this out on their own and without speaking to a lawyer at all. 

Divorcing without the involvement of a solicitor, however, can expose individuals to a number of risks, as they are less likely to be alive to the more nuanced provisions of matrimonial finance legislation.

One such risk is the “remarriage trap”. 

Unlike in some countries where one cannot get divorced without having addressed the financial issues flowing from the end of the marriage, that is not the case in this country. A financial application is a quite separate process and can be made later (as we will see below, possibly much later) than the divorce to which it relates. The remarriage trap arises where a couple divorces and one party remarries without first having made such a formal application for financial remedy in respect of the marriage which has ended. In that event, owing to the provisions of s28(3) of the Matrimonial Causes Act 1973 (MCA), the remarried party is unable subsequently to make any capital financial claims whatever in respect of the first marriage, such as lump sums or property adjustment orders, which would include the transfer of property from one party to the other.

Where people are being encouraged to conduct their own divorce proceedings without consulting lawyers owing it to be a simple online process, at what point would anyone learn about this danger? Perhaps there should be warnings given in the online procedure.

Conversely, where a formal application for financial relief has been made before the second marriage then that application can be freely pursued regardless of a remarriage, and that applies even if there is a delay of years – or even decades. In one case a financial claim was successfully pursued some 20 years after the first divorce, despite remarriage, simply because a formal claim had been made (but clearly not pursued) before the second marriage had taken place.

A particularly graphic demonstration of the effect of the remarriage trap can be found in the case of E v E [2008] 1 FLR 220 in which a husband and wife reached a financial agreement after finalising their divorce by which the wife would pay the husband a lump sum of £250,000. 

However, the husband unwisely remarried in Bali before his formal financial application was made. It was then beyond the court’s power to make such an order in his favour owing to the provisions of s28(3) MCA, and there was nothing the husband could do about it. The judge described it as a cautionary tale, as indeed it was.

There are two ways in which the necessary application is made – both straightforward. 

The most obvious is to fill in the relevant section of the divorce petition which expresses the intention to make financial claims. The second is the issue of what we call a Form A which has the same effect.

The remarriage trap applies only to capital claims because regardless of when a claim for periodical payments (aka maintenance) is made, it can never survive a remarriage, whatever the financial circumstances (section 28(1) MCA).

So it always pays to have a word with a lawyer in the event of divorce, even if that is being conducted online from your home. The Hunters family team is always available to be consulted in respect of this or any other matter related to divorce or relationship breakdown.