Remarrying after divorce may feel like a fresh start. However, many people do not realise that getting married again before resolving their financial claims against a former spouse can permanently prevent them from obtaining important financial orders.
This is commonly known as the remarriage trap in financial remedies.
The issue is particularly important where former spouses separate amicably, reach informal financial arrangements, delay commencing financial remedy proceedings or proceed with a second marriage before their financial claims have been properly preserved.
The statutory framework is deceptively simple. Its practical consequences, however, can be severe.
The law governing financial claims following divorce demonstrates both the rigidity of section 28(3) of the Matrimonial Causes Act 1973 ('MCA 1973') and the continuing uncertainty surrounding the extent to which a court may nevertheless structure financial relief in favour of a remarried spouse through proceedings commenced by the other party.
For anyone contemplating remarriage before a financial settlement has been finalised, understanding these provisions is essential.
1. The statutory framework: Financial remedy claims after divorce
There is no requirement for a final divorce order to be made before financial remedy proceedings are commenced.
However, under section 23(5) of the Matrimonial Causes Act 1973, financial provision orders, such as lump sum orders and periodical payments orders, do not take effect unless the divorce order has been made final.
In practice, parties will often have finalised their divorce before commencing financial remedy proceedings.
But what happens when one or both parties to a divorce remarry before applying for a financial remedy?
The answer lies in section 28(3) of the Matrimonial Causes Act 1973.
The provision 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.
The financial remedy claims affected include:
Lump sum orders;
Periodical payments orders;
Secured periodical payments orders; and
Property adjustment orders under section 24 of the MCA 1973.
The significance of section 28(3) is magnified by the absence of any general limitation period for financial remedy claims following divorce.
As confirmed by the Supreme Court in Wyatt v Vince, financial claims can survive for many years following separation and divorce if they have not been dismissed or finally determined.
At paragraph 32, the Supreme Court explained:
Consistently with the potentially life-long obligations which attend a marriage, there is no time-limit for seeking orders for financial provision or property adjustment for the benefit of a spouse following divorce. Sections 23(1) and 24(1) of the 1973 Act provide that such orders may be made on granting a decree of divorce “or at any time thereafter”.
Remarriage therefore operates not merely as a procedural inconvenience, but as a jurisdictional bar imposed by statute.
Does remarriage extinguish all financial claims?
Importantly, remarriage does not extinguish every possible financial claim arising from a former marriage.
Pension sharing applications survive because pension sharing orders were not incorporated into the section 28(3) prohibition when they were introduced by the Welfare Reform and Pensions Act 1999.
That omission is widely regarded as a legislative oversight rather than a deliberate policy decision. Nevertheless, it remains legally significant.
Parties frequently make two mistaken assumptions:
That obtaining a final divorce order automatically resolves their financial claims; or
That an informal or negotiated financial agreement is sufficient without making the necessary court application.
Neither assumption is correct.
The distinction between preserving financial claims and finalising a financial settlement is fundamental.
A party may remarry after issuing an effective financial remedy application without necessarily losing the court's jurisdiction. The difficulty arises where the parties negotiate informally but fail to invoke the court's jurisdiction before remarriage takes place.
2. Timing, jurisdiction and valid financial remedy applications
The authorities consistently demonstrate that timing is decisive when considering the remarriage bar under section 28(3) MCA 1973.
A valid financial remedy application issued before remarriage preserves the court's jurisdiction, even where the substantive financial determination takes place afterwards.
Conversely, remarriage before a qualifying application has been made is likely to restrict the financial relief available.
A key authority is Whitehouse-Piper v Stokes [2008] EWCA Civ 1049.
In that case, both parties had remarried before the Form A was issued.
The parties had married in 1989 and divorced in 1994. An important feature of the case was that the wife's divorce petition contained a prayer for ancillary relief.
The wife remarried in 1995, and the husband remarried in 2004. Form A was subsequently issued in November 2006.
The Court of Appeal held, at paragraph 12, that the wife had already applied for all forms of ancillary relief through her divorce petition. She was therefore entitled to issue a notice of intention to proceed in Form A notwithstanding that the notice was filed after remarriage.
The court also recognised the established ability of a party to seek a property transfer order against themselves, relying on Dart v Dart [1996] 2 FLR 286.
The judgment illustrates the importance of procedural precision when preserving financial claims following divorce.
A qualifying application may therefore arise through:
Financial claims included within the divorce application itself; or
A subsequently issued Form A or Form A1, as applicable.
The precise procedural circumstances matter. Parties should not assume that informal negotiations, correspondence or an intention to resolve financial matters at a later date will preserve their financial remedy claims.
3. Alternative claims where the remarriage bar applies
Where the remarriage bar under section 28(3) applies, it may be necessary to consider alternative causes of action outside the conventional financial remedies jurisdiction under the Matrimonial Causes Act 1973.
Potential routes include:
Claims under the Trusts of Land and Appointment of Trustees Act 1996 ('TOLATA');
Applications under the Married Women's Property Act 1882; and
Schedule 1 Children Act 1989 applications for the benefit of children.
However, these alternatives are narrower and may be procedurally unsatisfactory when compared with the ordinary financial remedy jurisdiction.
TOLATA litigation, in particular, introduces a proprietary analysis that may be ill-suited to disputes that are essentially matrimonial in character.
In Tee v Tee and Hillman [1999] 2 FLR 613, the Court of Appeal expressed clear reservations about using TOLATA proceedings where the essential dispute remained matrimonial in nature.
Accordingly, alternative claims should not be regarded as an automatic substitute for financial remedy proceedings under the MCA 1973.
The availability and scope of any alternative remedy will depend upon the particular facts and legal basis of the claim.
4. What happens when one party remarries and the other applies for financial remedy?
One of the more controversial questions in financial remedies law concerns whether a spouse who has remarried may nevertheless benefit from financial orders made in proceedings initiated by the other spouse.
In E v E [2008] 1 FLR 220, the late Singer J observed:
It would be absurd if you could make an order in favour of a remarried spouse because the other spouse was asking you to, but you could not if that spouse him or herself were asking for the same relief.
The issue was subsequently considered by the Financial Remedies Working Group.
Paragraph 8 of its Final Report, dated 15 December 2014, recommended that the Family Procedure Rules and/or Form A should be amended to clarify that, once a Form A had been issued by one party to a marriage or civil partnership, all possible applications by both parties should be deemed to have been made, unless the application was expressly limited to a particular remedy.
The recommendation was intended to address the difficulties arising where one party had remarried and was prevented from making their own application.
However, this recommendation has not been implemented.
The decision in Hyslop v Hyslop
Further guidance can be found in Hyslop v Hyslop 2DS 2022/13 and 2DS 2023/03, an Isle of Man decision.
Although decisions of the Isle of Man courts are not binding on courts in England and Wales, the judgment contains a detailed analysis of the relevant authorities and provides useful guidance on the operation of the remarriage bar.
At paragraph 181, the court reached a number of important conclusions.
First, it considered that a party could apply for orders against themselves, and that an order could consequently be made in favour of the other party.
Secondly, where Party A had made no application for orders against themselves, Party B had remarried before making any application, and Party A held all the assets, the court could not make an order in favour of Party B. The court relied upon E v E.
Thirdly, where property was held in joint names, it remained possible for Party A to seek an order transferring their interest in that property to Party B, potentially with a balancing lump sum payable by Party B, even where Party B had remarried and had made no application.
Fourthly, the court considered the recommendation of the Financial Remedies Working Group that an application by one party for all forms of relief should automatically bring both parties' claims before the court. However, it concluded that this recommendation was not supported by sufficient legal analysis to provide a safe basis for making orders in favour of the husband in that particular case.
Fifthly, the court considered the relationship between lump sum provision and property adjustment provision.
It concluded that a court was not necessarily precluded from making an order in favour of a person caught by the remarriage trap, provided that the person was not the net recipient of capital under the overall order.
The court illustrated this through an example involving a jointly owned matrimonial home.
A wife applies for financial provision, while the husband makes no application and subsequently remarries before the wife's application is determined.
The wife seeks an outright transfer of the matrimonial home into her sole name. The husband agrees to that transfer, but seeks a charge back on Mesher terms, deferring the sale or realisation of his interest until the children have grown up.
The court considered that such an order could be permissible, provided that the husband's deferred interest did not exceed 50%, meaning that he was not the net recipient of ancillary relief.
Finally, the court considered more complex cases involving multiple assets, some held jointly and others in the sole name of one or other party.
It concluded that orders transferring individual assets into the sole name of the remarried party, or providing for particular lump sums, might still be possible where the remarried party was not the net recipient of capital under the overall order.
The court's analysis is particularly significant because it illustrates that the consequences of the remarriage bar are not necessarily identical in every financial remedy case.
It is noteworthy, however, that the court did not need to apply its analysis to the facts of the case, as explained at paragraph 182.
Does Hyslop provide a way around the remarriage trap?
What emerges from the authorities is that there is no reported case in which the financial remedies court has awarded a spouse caught by the section 28(3) remarriage trap more than they could have achieved under TOLATA principles.
The decision in Hyslop should therefore be approached with care.
It is an Isle of Man decision, not binding authority in England and Wales, and its conclusions do not remove the statutory restriction imposed by section 28(3).
Nevertheless, it provides a useful analysis of the potential scope for orders benefiting a remarried party within proceedings commenced by the other spouse.
The current divorce procedure has arguably introduced further uncertainty because the modern forms do not replicate the historic procedural structure precisely.
A cautious approach therefore favours issuing Form A proceedings before remarriage wherever there is any doubt about whether financial claims have been properly preserved.
5. Conclusion: Why legal advice before remarriage is essential
The remarriage trap continues to occupy an unusual and important position within financial remedies law.
The relevant statutory provisions are relatively short and superficially straightforward. The surrounding case law, however, is considerably more complicated.
The authorities demonstrate three important practical realities:
Jurisdiction depends upon procedural timing: The timing of a valid financial remedy application can determine whether the court retains jurisdiction to make financial orders.
Informal settlement negotiations do not preserve claims: Negotiating a financial settlement or reaching an informal understanding does not necessarily protect a party's rights under the Matrimonial Causes Act 1973.
Remarriage may irrevocably extinguish significant financial rights: Section 28(3) can prevent a remarried spouse from applying for important financial provision and property adjustment orders against their former spouse.
For anyone contemplating remarriage before a financial settlement has been finalised, obtaining specialist family law advice is essential.
The issue is particularly important where there are outstanding financial claims, unresolved property interests, pension arrangements or ongoing negotiations concerning the division of matrimonial assets.
A person considering remarriage should obtain professional advice about whether an effective financial remedy application has been made and whether further procedural steps are required to preserve their position.
The consequences of failing to do so can be severe and, in many cases, irreversible.
If you are dealing with unresolved financial claims following divorce, or are considering remarriage before your financial settlement has been finalised, specialist advice from a direct access family law barrister may help you understand your position and the options available to you.
