The impression many have that the Final Order (previously known as the Decree Absolute) of divorce severs all ties with their former spouse is false. The Final Order ends the parties’ marriage but both parties have financial claims against one another arising out of their marriage which can only be dismissed by the court. If spouses do not take steps to ensure those financial claims are dismissed by the court, ex-spouses can pursue a financial claim at any point in the future save for in narrow circumstances. The court will work with up to date assets / needs and so any capital/pension/income provision built after the divorce is at risk of being shared in the future. Without the court formally dismissing those financial claims, it leaves former spouses exposed to the harsh realities.

How claims are impacted when you re-marry

Upon re-marrying a spouse may restrict their entitlement to apply for financial provision against their former spouse. This is referred to as the ‘re-marriage trap’. However, this doesn’t necessarily mean that their spouse will have restricted claims.

If the divorce applicant (previously known as the Petitioner) does not tick the relevant box within the divorce application (previously known as the petition) relating to financial provision and they do not, or did not, start financial remedy proceedings before they remarry, then their claims against their former spouse will be limited to claims against pension only (no claims for capital or income may be brought). If the divorce respondent did not start financial remedy proceedings before they remarry, then their claims will be limited to claims against pension.

Let’s look at a couple of examples:

  • Spouse A applies for a divorce and finalises it. They ticked the box relating to financial provision within the divorce application. No financial remedy proceedings are started and there is no court order dismissing the financial claims. Both Spouse A and Spouse B remarry other people.

Spouse A may bring a claim for capital, pension and income against Spouse B. Spouse B can only bring a claim for pension provision.

  • Spouse A applies for a divorce and finalises it. They did not tick the box relating to financial provision within the divorce application. No financial remedy proceedings are started and there is no court order dismissing the financial claims. Spouse A remarries but Spouse B does not.

Spouse B may bring a claim for capital, pension and income against Spouse A. Spouse A can only bring a claim for pension provision.

Once the parties have remarried, unless they fall under one of the exceptions highlighted above, the court does not have the power to consider any claim brought for capital and income, even if agreed. This was evidenced in E v E [2008] 1 FLR 220 where the court refused to sign the consent order as the husband had re-married 3 days before, relinquishing his financial claims against his former wife.

There are other pieces of legislation that may allow the prohibited spouse to bring some form of claim (for example, The Trusts of Land and Appointment of Trustees Act 1996 “TOLATA” which is generally used to govern unmarried couples’ property disputes). However, those pieces of legislation will not have the same discretionary power that the family court has – the family court’s overarching objective is fairness whereas other laws (such as TOLATA) are far stricter and often less favourable.

How to protect yourself

The best way to protect yourself from your spouse making any future claims is to apply to the court for a financial order dismissing the financial claims you have against one another. This will protect you whether you are the applicant or the respondent. If you have plans to remarry but have not yet resolved the financial issues from your previous marriage, then it is worth speaking with a specialist family solicitor to provide you with tailored advice to your circumstances to ensure you are protected so far as possible moving forward.

 

If you have any further enquiries regarding the impact on claims for financial provision when you re-marry, please contact our Family Team and we would be happy to help.