Marriage Take Two: What happens if a party re-marries before finalising their Financial Remedy Proceedings?

Matrimonial Finances and Complications with re-marriage: The ‘elephant trap’.

Before you remarry, you will need to obtain a Final Order (formerly known as ‘Decree Absolute’) from the Court, which legally ends your existing marriage. You are not officially divorced until this has been granted.

However, it is important to note that although your marriage may be legally over at this point, your financial remedies are not automatically finalised. Financial claims can only be dismissed if the Court makes a final order in this respect or if a Consent Order has been approved by the Court, recording the agreement that has been reached between you.

Therefore, it is advisable to finalise any claims for financial remedies before or at the same time as your divorce finalises, as this could significantly and adversely impact upon your financial circumstances. This is known as falling into the ‘elephant trap’, as famously described by Singer J.

The general rule is that if a spouse has remarried, they lose their entitlement to apply for a financial provision order or a property adjustment in their favour.

Timing is the most important factor here.

This is demonstrated clearly in Section 28 (3) Matrimonial Causes Act 1973, which states:

“If after the grant or making of a decree or order dissolving or annulling a marriage either party to that marriage remarries whether at any time before or after the commencement of this Act or forms a civil partnership, that party shall not be entitled to apply, by reference to the grant or making of that decree or order, for a financial provision order in his or her favour, or for a property adjustment order, against the other party to that marriage.”

Put simply, if the partner remarries, a spouse may not apply for a financial provision order or a property adjustment order in their favour, they “shall not be entitled to apply”.

The same rules apply to Civil Partnerships.

However, if the applicant remarries after applying for financial remedies, even if the financial remedies application has not been heard, the application can continue to proceed.

This general rule also does not apply to those who are remarried and applying on behalf of or in relation to children.

The most vital issue we must consider is the fact of whether an application for financial remedies prior to remarriage has been made. We need to ascertain this point before being able to correctly advise.

What counts as an application?

An application for a claim for financial remedies can be made by using the following forms:

• Form A – this is the form used to give notice of your intention to proceed with an application for a financial order in proceedings for divorce or ending a civil partnership with which normal procedure applies;
• Form A1 – this is the form used to give notice of your intention to proceed with an application for a financial order in proceedings for divorce or ending a civil partnership with which fast-track procedure applies;
• Form D8 – this is the form used to apply for a divorce or to dissolve a civil partnership where you can indicate within the form your intention to proceed with an application for a financial order; or
• In an answer to a D8 – which is a form used to ‘answer’ a divorce application. However, we strongly advise against this option as it adds further difficulties, as demonstrated in Hargood v Jenkins “a mere answer giving an acknowledgement of service to a divorce petition indicating an intention to bring financial remedy proceedings was not sufficient to constitute an application and could not circumvent s28(3) given that the wife had remarried”.

Has there been a valid application?

The next issue which needs to be addressed is whether there has been a valid application.

The leading case in defining this question is E v E [2008] 1 FLR 22, whereby the Husband fell into the famous ‘elephant trap’ through his premature remarriage.

In this case, the parties had been granted the Decree Absolute (now known as ‘Final Order’) for their divorce, they had since negotiated a full and final settlement of all financial claims against one another, and a full consent order had been drafted and signed.

In full confidence of the agreed consent order and in the solicitors the Husband had instructed, the Husband remarried in Bali, before any application to the court had been made.

As a consequence of this, Singer J stated the following:

“I cannot make bricks without any straw, and Section 28(3) of the 1973 Act burns the straw. There is no jurisdiction. I refuse the husband’s application”.

Unfortunately, despite the fact that there was an agreement made and a consent order signed by all the relevant parties, because the Husband remarried, the Court no longer had jurisdiction to deal with the financial remedies of his previous marriage.

In this case, the only order that was sought was for the Wife to provide the Husband with a lump sum. Despite this, Singer J considered that the divorce petitioner Wife could not apply for that order to be implemented against herself, even if it were the case that she wanted to do so. It is thought that the Husband’s solicitors tried to be creative in asking if they could ‘piggyback’ on the Wife’s claim to get the financial order approved in that way, as an alternative approach.

Alternative Approach – provisions which do not cause the “elephant trap”

If there is owned property, a remarried party can make a claim under the Trusts of Land and Appointment of Trustees Act 1996 (TLATA) or an application under the Married Women’s Property Act 1882, if the facts merit it. It is, however, important to note that these alternative remedies are only available where there is no jurisdiction under the Matrimonial Causes Act 1973. To put it simply, if there is no valid application from either party put before the Court, as demonstrated in Tee v Tee and Hillman [1999] 2 FLR 613.

Pension sharing orders are not included in the current provisions of Section 28 (3) and so this can be implemented regardless of remarriage.

As above, if a party is applying for relief of a benefit of a child, this is not affected by the trap explained in Section 28 (3).

In addition to this, another alternative is where there is a valid maintenance agreement in place in accordance with Section 34 of the Matrimonial Causes Act. If this is the case, even after the remarriage the Court retains the power to enforce a maintenance agreement.

Speak to our family experts

Should you wish to speak to someone regarding the above in more depth, or in relation to any other family law matter, please contact a member of the family team on 03456 381 381 or email us at enquiries@ibblaw.co.uk.