The ‘Re-marriage Trap’; the reason a Financial Remedy Order is so important

We have written about this issue before, but it is so important that it certainly deserves a reminder.

When supporting you through your divorce or dissolution, our dedicated family solicitors will always advise you how important it is to resolve your matrimonial finances and incorporate the agreement you reach in a financial court order.

You may not know that you remain financially bound to each other after your marriage ends. It certainly isn’t something that is explained to you on your wedding day! This means that you or your ex-spouse may have a claim against an asset owned by, or income received by, the other person. The claim exists in both life and death, meaning that your family may face the daunting prospect of a claim being brought against your estate when you die, unless matters are resolved.

So, what can I do about it?

The answer is simple; you can make sure that any agreement you reach about the matrimonial finances is incorporated in a Court Order. It doesn’t matter if you have no assets now; you may have some in the future and it is important to protect them.

But why should that agreement be incorporated into a court order?

Well, there are lots of reasons why that agreement should be incorporated into a court order and approved by the court.

• Firstly, if you decide to share your pensions, the pension company can only deal with the pension share if it is incorporated in an approved court order.

• Secondly, the terms of your agreement can only be enforced if they are incorporated in an approved court order. Say, for example, you have agreed that the family home will be sold, but your ex-spouse is refusing to place it on the market. If your agreement is incorporated in an approved court order, then you can make an application to the court to enforce its terms. If it isn’t, you simply can’t.

• Thirdly, we will draft the order so that it is in “full and final satisfaction of all claims arising in life or in death”. This means that, save for some limited exceptions, neither of you can make a financial claim against the other in the future, and your respective assets are protected.

• Finally, and most importantly, because of the “re-marriage trap”. If you are the respondent in divorce proceedings and there is no financial agreement or there is an agreement, but it is not incorporated into an approved court order, then you are barred from making a financial claim, other than one in relation to the other person’s pensions. You wouldn’t be able to enforce an agreement reached either.

The courts looked at this issue in the now established case of E v E [2008], which serves as a stark reminder of the dangers the re-marriage trap can pose. In that case, the parties had agreed that the wife would pay the husband a lump sum of £250,000. The husband then took a holiday to Bali where he re-married his new partner. Three days after his re-marriage, the husband’s solicitor filed a financial consent order at Court for approval, incorporating his agreement with his ex-wife. The Court refused to approve the order, as they did not have jurisdiction to do so after the husband’s re-marriage. The outcome? The wife wasn’t required to pay the husband any money.

Resolving financial matters is complex, both in law and practice. At Lawson-West Solicitors you will only be advised by a fully qualified solicitor who will have extensive experience in the resolution of family matters. Contact Us, we would love to help you.

Call our expert Family Law Solicitors today on 0116 212 1000

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