The purpose of divorce is to allow a couple in an unhappy marriage to go their separate ways and to afford them the opportunity to remarry at a later date.
However, embarking on a second marriage without dealing with the financial consequences of the breakup of the first marriage is an extremely risky business. Financial claims arising from the first marriage continue until there has been a Court order dismissing those claims.
Many divorcing couples understandably try to avoid costly legal proceedings but avoiding the issue can create further problems. In 2016 the Court ruled that there is no limit upon when financial claims can be brought. In that case a wife brought a claim after 27 years.
What is not commonly known is that if party remarries following divorce, they lose the right to make a financial claim. This is what the Court has called “The elephant trap of premature marriage”. A party cannot even rely on the other party to the marriage making an application if they have not remarried because the Court can still not make an order which benefits the party that has remarried. This was a ruling from 1983, upheld by a later ruling in 2008, in a case where a financially wealthy wife agreed to pay a settlement to her husband of £250,000. The husband remarried just 3 days before his solicitors could issue the application at the Court. Subsequently the Court refused to approve any financial order benefiting the husband on account of his remarriage before formally issuing a financial claim. A sobering tale in which the wife kept all her money and the husband did not obtain any financial settlement at all.
There are two limited exceptions. Firstly if a party petitioning for divorce includes within that petition a financial claim then that claim can be pursued in the Court at a later date even if that party has remarried. It is simply a question of ticking a box.
Secondly if there is jointly owned property a claim can be brought under the Trusts of Land and Appointment of Trustees Act 1996 for the sale of the property but not to alter the pre-existing shares in the property.
What lessons can be learnt?
1. Always have the Court make a financial order on divorce even if the order is only for the purpose of closing the door on future financial claims.
2. Don’t remarry until any outstanding financial issues from the first marriage are resolved.
3. Always seek prompt legal advice from a qualified family practitioner.