The remarriage trap – what is it and why is it so important?

19 March 2020

With an increasing number of people now conducting their own divorces, it has become evident that more and more people are falling foul of the dreaded ‘remarriage trap’.

Put simply, if you divorce and then subsequently remarry, without first having had a financial agreement (commonly referred to as a ‘Consent Order’) addressing the division of the matrimonial finances approved by the Court, then you will be barred from applying for a lump sum, property adjustment or spousal maintenance order against your former spouse. This is what is known as the ‘remarriage trap’.

The practical implications of falling into the remarriage trap may be disastrous, as it could result in an individual losing the right to claim any assets from the other party, even though, as part of a divorce, they might have been able to make those claims. It is therefore essential that you take steps to avoid it.

The easiest way to avoid the trap is to ensure that all financial and property matters relating to your marriage have been finalised before you remarry. This includes documenting the terms of any agreement within a Consent Order, and having this Order approved by the Court. If this is not possible, either because there is not enough time, or you are unable to reach an appropriate settlement with your former spouse, then at the very least an application for Financial Relief (i.e. a money application) should be filed with the Court prior to remarrying. This will then ensure that your financial claims against your former spouse are protected, other than the right to receive spousal support, which ends on the recipient’s remarriage.

The case of E v E [2008] acts as a brutal reminder of the dangers that the remarriage trap can pose. In this case the parties reached a negotiated agreement in which the wife, who held the bulk of the wealth in the marriage, was to pay the husband a lump sum of £250,000.

Upon concluding the agreement the husband’s solicitors filed a Consent Order with the Court for approval. However, crucially this was done three days after the husband had remarried in Bali. The husband asked the Court to approve the Consent Order in any event, but the Court refused. Singer J outlined that under the existing law in England and Wales, the Court did not have the jurisdiction to make the Order. As a result, the Consent Order could not be approved and the wife was not required to pay the husband any money.

This case acts as a sobering reminder of just how important the remarriage trap is, and the shocking ramifications it can have.

If you would like to know more about the topics discussed in this article, please do not hesitate to contact a member of Birketts' Family Law Team in Cambridge, Chelmsford, Ipswich or Norwich.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at March 2020.