English Divorce law is up to date when it comes to sorting out the financial aspect of a divorce or disputes about children. However, there are areas where it is very out of date.
The Matrimonial Causes Act 1973 sets out the rights of a spouse to seek a share of the matrimonial assets and maintenance. Buried deep within this legislation is the ‘remarriage trap’.
The Remarriage Trap
Put simply, if you divorce and then remarry without first having made a claim for a Financial Order in the divorce petition or having issued an application for a Financial Order, then you are barred from seeking maintenance orders, lump sum orders or property adjustment orders.
This can come as a very unpleasant surprise. More and more people are handling their own divorces and are not aware of the risk that simply filling the forms in wrongly could prevent them from making a financial claim.
The remarriage trap prevents a spouse from being able to seek an order for a lump sum payment or a property adjustment order. This effectively means that the spouse cannot seek a share of assets that are held in joint
names with their ex-spouse or solely held by the ex-spouse.
The only kind of financial order that the ex-spouse can seek is a pension sharing order. The reason for this appears to be that when the Matrimonial Causes Act 1973 was amended in the 1990’s to introduce pension sharing orders, no-one thought to also amend the remarriage trap rule.
Conclude your divorce properly
It is important that people do not remarry without first concluding their divorces properly.
The case of E v E serves as a salutary reminder of the ‘remarriage trap’. In this case the wife petitioned for divorce in 2003 and the Decree Absolute was pronounced in September of that year.
A financial settlement was agreed and in July 2005 a draft Consent Order was drawn up whereby the wife was to pay the husband a lump sum of £250,000. The order included the common recital that the agreement was only to be binding in the event of the Court making an order in its terms.
The husband remarried on the 12th August 2005. A few days later the order was filed with the Court, along with the husband’s Form A application for ancillary relief, for dismissal purposes.
Questions then arose as to the Court’s jurisdiction, in the light of the remarriage trap. The husband then applied to have the draft order approved. Mr Justice Singer refused the application – the husband had fallen into the remarriage trap, and the Court had no jurisdiction to approve the consent order.
How Nelsons can help
If you are planning on remarrying and are yet to resolve financial matters with your spouse, please contact a member of our team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.
A member of the team will be happy to discuss your circumstances in more detail and give you more information about the services that our family law solicitors can provide along with details of our hourly rates and fixed fee services.
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