How to avoid the remarriage trap

Alongside a divorce or civil partnership dissolution, the separating couple will need to consider how they will divide their finances. This can involve making a separate application to the court for a financial remedy order. As not everyone is aware that a divorce or dissolution does not simply cut financial ties between a couple, some individuals may unknowingly fall into the remarriage trap.

What is the remarriage trap?

Once you have obtained the final order of divorce or dissolution (previously known as the Decree Absolute), this legally ends your marriage or civil partnership.

There is no time limit as to when you should make an application for a financial order within or following the divorce or dissolution proceedings. However, if, after the finalisation of your divorce or dissolution, you decide to remarry or form another civil partnership without resolving the finances, you may be unable to apply for a financial provision order in your favour. This means you would not be able to apply to seek a share of the assets of the marriage or civil partnership; hence the term ‘remarriage trap’.

Financial provision orders include:

1. Property adjustment orders (i.e. transfer or sale of a property)
2. Lump sum orders
3. Maintenance orders
4. Pension sharing orders

Your ex-spouse would still be able to apply for any of the above orders if they have not remarried. If they do, it is likely that your new spouse’s money or assets (since they might be available to you) will be taken into account when deciding on a financial settlement.

How can I avoid the remarriage trap?

If you are the applicant in the divorce proceedings, you will need to make sure you tick the relevant box to confirm you do want to apply for a financial order when you are making the application. This should be done even if you are not intending to make a financial remedy application at that time.

If you have already submitted the divorce application without ticking this box or you are the respondent in the divorce, you should consider making an application to the court for a financial remedy order (Form A). Alternatively, if you can reach an agreement with your ex-spouse as to how you will divide the finances, you can submit a financial consent order application to the court for approval.

You will need to ensure that you do this before remarrying.

What happens if a party has remarried?

If you are the party who has remarried, you will be unable to apply for a financial provision order unless you have done one of the above. If you have not done so, you can still apply for the following:

1. A pension sharing order
2. If there is property, you could apply for an order under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).
3. In some circumstances, an application under Schedule 1 of the Children Act 1989 for financial provision for the benefit of a child can be made.

Your ex-spouse can still make an application for a financial order in their favour if you have remarried. Whilst this can resolve the division of the financial assets, it is important not to rely on this, especially if you happen to be the financially stronger party.

If your ex-spouse has remarried, but you have not, this will not prevent you from being able to apply for financial provision at any time.

Contact our divorce and civil partnership dissolution solicitors

Separating finances in divorce or civil partnership dissolution can be complex, and a simple mistake or oversight can cause significant issues later down the line.

To speak to one of our specialist divorce finance lawyers about how you can avoid the remarriage trap, call 0117 325 2929 or fill out this form, and we will be in touch.