We sometimes advise clients who have taken steps to apply for a divorce themselves, but require our assistance in dealing with their finances. It is often the case that the financial side of divorce is more complex than the divorce itself. In some circumstances, clients come to us having already remarried, but having not yet dealt with the division of the finances with their former spouse. It is therefore important to note that upon divorce, your financial claims against each other, are not automatically dismissed. However, when clients come to us having already remarried, this can often present problems.
What is a Consent Order and why is it important?
Parties getting divorced need to reach the middle-stage of the divorce proceedings, and be in receipt of Conditional Order, before a Consent Order detailing any financial agreement reached, can be filed at Court for approval. It is only upon the Consent Order being approved by a Judge, that any agreement reached is made legally binding. Within a Consent Order, parties should address whether their respective claims against each other’s capital, income and pension are to be dismissed. For this reason, it is incredibly important that parties take steps to deal with the division of their finances upon divorce, and prior to remarrying.
What is the “remarriage trap”?
When you do not obtain a legally binding financial order upon divorce, and subsequently remarry, you risk being prevented from applying for a property adjustment order, spousal maintenance order, and lump sum order, against your former spouse. Your former spouse can, however, still apply for these orders themselves, if they have not remarried. This is commonly referred to as the “remarriage trap”. For the avoidance of doubt, remarrying before a Consent Order has been approved by the Court, does not affect any claim that parties may have in relation to each other’s pensions.
To avoid being prevented from applying for certain orders against your former spouse upon remarriage, it is usual practice for the Applicant in the divorce proceedings to include an application for a financial order in the divorce application, even if they do not intend on pursuing that application at that point in time. By proceeding in this way, the Applicant’s claims will remain open, and will not be prevented in the event of remarriage. Therefore, it is important that parties seek advice from a solicitor, prior to commencing divorce proceedings by themselves.
An example of the “remarriage trap”
An example of the “remarriage trap” is the case of Whitehouse-Piper v Stokes, where a wife remarried without applying for a financial order, as at the time, the family home was in negative equity, and the wife could not be released from the mortgage. When the house later increased in value, and following the wife’s remarriage, the parties agreed that the family home should be transferred to the husband, and that the wife would transfer her beneficial interest in the property to the husband. However, due to the wife not dealing with her financial claims properly prior to remarriage, whilst the Judge was able to make an Order that the family home be transferred to the husband, the Judge was unable to make a lump sum order in favour of the wife, as her remarriage precluded her from being able to apply for the same.
It is therefore incredibly important not to leave dealing with the finances until it is too late, and it is even more important to obtain a legally binding financial order, before a remarriage takes place. Should you need further advice in relation to this, our expert family team are here to advise you further.
Author: Fay Jones