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HCR Law Events

10 May 2021

Wedding couples: mind the remarriage trap

To the joy of couples and their guests, restrictions necessitated by the Covid-19 pandemic in relation to weddings, civil partnership ceremonies and receptions have been gradually lifting over the course of this spring. All being well, the government plans to remove all such limits from 21 June.

Couples are increasingly choosing to seize the opportunity of getting married at short notice and sharing their wedding day with a limited number of family and friends, particularly if they have already been forced to postpone or cancel their wedding during lockdown.  In stark contrast to traditionally time-consuming marriage preparations, articles are now circulating in the wedding industry detailing how to plan a wedding in 30 days or less.

If you are divorced and getting married for a second time, you should consider your position carefully before rushing into a second marriage.

It is widely known that before you can remarry, you need to obtain a decree absolute from the court which legally ends your existing marriage. However, people tend to be less aware that remarriage may have a significantly adverse impact upon their financial circumstances if financial issues are not dealt with at the same time as the ending of their first marriage.

If you do remarry without reaching a legally binding financial agreement with your ex-spouse in the form of a court order, then the court will not allow you to apply for a lump sum, spousal maintenance or property adjustment order from your ex-spouse in the future, which you are entitled to do as part of the divorce proceedings. This is known as “the remarriage trap”.

This means that you could be unable to:

  • claim a share of the family home, holiday homes or investment properties
  • seek regular maintenance to support you and any children of the family
  • obtain a lump sum payment to reflect your share of the matrimonial assets.

The only exception is that you may still make an application for a pension sharing order to obtain a share of your former spouse’s pension after you have remarried, but practically speaking those funds would only become available to you at retirement age.

The case of Whitehouse-Piper v Stokes is a good example. The wife remarried shortly after the divorce without applying for a financial order. Some years later, the judge awarded the family home to the husband and refused to allow the wife to apply for a lump sum order because her remarriage barred her from applying for a financial order. On top of that, when she attempted to appeal the judge’s decision, she was ordered to pay her ex-husband’s costs.

The best way to avoid this situation is to ensure that you have reached a legally binding agreement with your ex-spouse before you remarry. This can be achieved through negotiations conducted directly with your ex-spouse, through solicitors or a combination of the two.

Financial remedy proceedings are complex and therefore it is advisable to take legal advice from a solicitor at the outset of the negotiation process to ensure that you are aware of what you may be entitled to.

If you have not reached a legally binding financial agreement, but there is a particular urgency for you to remarry, you should at least protect your position by filing a financial remedy application with the court prior to your remarriage, which will preserve your ability to pursue a financial order from your ex-spouse at a later date.

Such a step is helpful but ideally it should be used as a last resort, since a period of cohabitation and the financial resources of your new partner or spouse may be taken into account by the court and reduce the share of the matrimonial assets that you do receive in future.

If you are the financially stronger spouse, it is perhaps even more important to reach a legally binding financial agreement with your ex-spouse. This will ensure that you, any future spouse and second family you may go on to have, are protected against any financial claims that your ex-spouse may bring against you in the future.

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About the Author
Susannah May, Solicitor

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