The remarriage trap is sadly not the sequel to the Parent Trap, the famous Lindsay Lohan movie where twins separated because of their parent’s acrimonious divorce meet by chance and end up trying to get their parents back together. It is, in fact, something more legally concerning.
Zanariah Webster, a Senior Associate, explores what the remarriage trap is and how to avoid it.
What is the remarriage trap?
In England and Wales, you cannot be married to more than one person. This is known as bigamy and is illegal. However, your final order of divorce (previously the Decree Absolute) legally dissolves your marriage, and you are free to move on and marry someone else as soon as you wish.
The remarriage trap is the term for people who enter second marriages having not resolved their financial matters with their first spouse upon their divorce. Getting remarried with no court approved financial consent order will mean you are unable to apply for financial provision from your ex-spouse. Within this, the key risks are:
- Unable to claim spousal maintenance, lump sum, or periodical payment agreement
- Unable to get a property adjustment order
However, the remarriage trap does not affect your right to claim on your ex’s pension. Importantly, child maintenance payments will remain in place too as these are dealt with independently by the Child Maintenance Service.
If your ex-spouse remains unmarried after your divorce, and you have no financial order in place, they are still able to make an application for a financial order. Divorce and financial matters are two separate issues without a financial order, you are at significant risk to you if you have remarried as your new spouse will be required to complete financial disclosure, and their assets may be considered as part of the settlement with your ex.
Why do people fall into the remarriage trap?
It is unfortunately far too common that people don’t know that they need to sever financial ties with their ex-spouse and ensure that the matrimonial pot is divided fairly upon divorce. Even if you have kept your finances separate during your marriage, in the eyes of the law, you and your spouse are financially interlinked even if your marriage has legally ended.
When you get married, your legal standing and responsibilities change. So, if you remarry after divorce, your assets become marital property in your new relationship and will be subject to division if that second marriage ends.
There are also complications in terms of inheritance, as your next of kin automatically becomes your spouse upon marriage. If you die without a will, all your estate will pass to your spouse. It is important that your will is kept up-to-date and reflects your most current wishes.
Seek legal advice from an expert family solicitor and a wills and probate solicitor to ensure your documents are legally effective.
How can I avoid it?
The only way to avoid the remarriage trap is by ensuring you get a court approved financial consent order, dividing your and your ex-spouse’s matrimonial assets. Ideally, you should have this in place before you apply for your final order, which legally dissolves your marriage, so everything is tied off neatly. Informal arrangements such as conversations or emails setting out financial division are not legally binding and no matter how good the intentions, those arrangements do not protect your finances whereas a consent order does.
During divorce proceedings, you have a 20-week ‘cooling-off’ period between making your divorce application and receiving your conditional order. This order acknowledges that the court will allow you to divorce, but has not yet dissolved the marriage. This gap is the ideal time to negotiate your finances.
You can apply for a financial consent order at any point after your marriage ends, provided you have not remarried. However, it is safest to ensure this is firmly in place as soon as possible.
Read more about getting a financial consent order.
Useful Links
What is a financial settlement?
Divorce finances: How DIY divorce can backfire
How to get a clean break order
Download the guide How to: Reviewing your financial disclosure
