What is “The Remarriage Trap” and how to avoid it

December 6, 2022

A “Final Divorce Order”, formerly known as a “Decree Absolute”, is not as “final” as it sounds.

Whilst a Final Divorce Order ends a marriage, leaving each party to remarry, it does not automatically terminate the parties’ financial claims against each other.

Even after a Final Divorce Order has been made, former spouses who do not obtain a Final Financial Order are not barred from applying to the court after the divorce for lump sum orders; transfer of property orders; periodical payment orders (spousal maintenance); and pension sharing orders.

In the case of Wyatt v Vince: a married couple who separated in 1984 and divorced in 1992 did not obtain a Final Financial Order at the time and then, in 2010, Mr Vince’s former wife applied to the court for an order that he pay her a lump sum.  The husband tried to have the claim struck out but the Supreme Court unanimously determined that it could proceed, as the long delay did not change the fact that there was a legally recognisable claim, the merits of which should rightly be considered despite the passing of time.

Where a divorcee re-marries, without first obtaining a Final Financial order, they fall into the remarriage trap and will not be able to apply for the following type of financial relief from their former spouse:

Lump sum orders

Property adjustment orders

Periodical payment orders

Pension attachment orders

The remarriage trap does not apply to pension sharing orders.  Even once a divorced person has married, they can apply for a share of their former spouse’s pension.

Finalising financial matters with a Final Financial Order at the time of divorce is always advisable and is the best way to obtain certainty for both parties and avoid the risk of future litigation.  An order can be obtained by agreement, out of court, or imposed on the parties by a judge if an agreement cannot be reached.

Partner, Family Law
t: 01276 854 924
e: sarah.speed@herrington-carmichael.com

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Sarah Speed
Partner, Family
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This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

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