‘The re-marriage trap’
The difference between not making a claim and having a claim dismissed
It is important that you understand the options available to you before you decide on how to deal with the ﬁnancial arrangements between you and your former husband/wife.
Spouses and former spouses have rights to make ﬁnancial claims against each other by applying to the court for orders for any or all of the following:
1. Maintenance (i.e. income payments).
2. Adjustment of property ownership (e.g. transfer of a house from joint ownership to the sole ownership of one spouse).
3. Lump sums (i.e. capital payments).
4. Pension sharing or attachment.
These rights can only be brought to an end in two ways. The ﬁrst and most usual way is by a court order. Where one or both spouses do not wish to proceed with ﬁnancial claims then, provided the court agrees that such an order would be appropriate, a financial consent order can be made dismissing their ﬁnancial claims.
The second way is where someone obtains a divorce and then re-marries. In this situation, unless that person has already applied for the orders for a lump sum or transfer of property which they are seeking either in the divorce application or by way of formal application on Form A before they re-marry, then they are caught in ‘the re-marriage trap’. The effect of this trap is that they have lost the right to make those ﬁnancial claims against their former spouse.
Should the spouses decide not to obtain court orders dealing with ﬁnancial provision and in the event that the re-marriage trap does not apply, then the claims which each of them have against the other are simply left open. This situation is unsatisfactory in that it creates a degree of uncertainty because it leaves the possibility of one spouse making a claim against the other at any time. On the other hand, where one spouse’s ﬁnancial position is likely to improve substantially it may be in the other’s interest to delay a ﬁnal ﬁnancial settlement.
Where neither spouse wants to claim against the other it is usually better for an application to be made by consent for the respective claims of each spouse to be dismissed.
Clearly, this is an important matter and please telephone me if you wish to discuss it in further detail.