When going through a divorce, many people focus on ending the marriage itself and overlook the financial implications that can follow. Without a formal financial agreement, unresolved claims can resurface years later, even after remarriage. This article explains why obtaining a financial consent order is essential, what risks arise if you remarry without one, and how things like pensions and jointly owned property are affected.
When divorcing, do I need an official document to record a financial agreement with my spouse?
It is a common misconception that when parties divorce, all ties are automatically severed. The Final Order dissolves the actual marriage, but the parties’ financial claims against each other remain “live” until dismissed by the court. Couples should therefore obtain a financial consent order setting out the terms of their financial agreement and importantly, to ultimately dismiss their financial claims against each other. In recent years with more couples filing their divorce online themselves they frequently:
- do not deal with financial matters at all, preferring to leave to a later date; or
- verbally agree what is to happen with their assets / liabilities.
This leaves each party potentially exposed to the other party bringing a financial claim against them in the future.
What happens if I remarry and I haven’t obtained a financial consent order?
If you remarry without first sorting out your financial arrangements, you may lose the right to ask the court for certain financial orders – this is often called the “remarriage trap”. In simple terms, once you remarry, you can’t go back and claim things like spousal maintenance or property adjustment (unless you applied to the court before remarrying). This rule comes from Section 28(3) of the Matrimonial Causes Act 1973.
The types of orders you lose the right to apply for include:
- Spousal maintenance
- Lump sum and property settlement orders
- Property adjustment orders
- Pension attachment orders
- Clean break orders
Whilst the “bar” applies to the party who has remarried, if your ex-spouse has not remarried then they could potentially pursue a financial claim against you.
What about pension sharing?
The right to apply for a pension sharing order is not lost on remarriage as it is not included within the prohibited categories in S28(3) as long as the application (or response) in the divorce proceedings included a claim for financial provision.
What if I still own a property jointly with my ex-spouse?
If you did not make a valid application to the court for financial provision before remarrying, the family court cannot order the sale or transfer of a property held jointly with your ex-spouse. If your ex-spouse refuses to agree sell or transfer the property, then it is recommended that you attempt to reach agreement voluntarily with the assistance of a mediator or a solicitor qualified in the Resolution Together approach.
If no agreement is reached you could apply under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) for an order for sale and/or to determine in what shares the property is held. These are civil proceedings (not family proceedings) and the costs can be significant with the unsuccessful party having to pay the successful party’s costs.
Conclusion
When divorcing it is important to obtain a financial consent order to ensure your financial claims against each other are dismissed. If you haven’t obtained a financial consent order and are considering remarrying, then you should ensure that you apply for a financial order before you remarry. Not doing could have significant financial and cost implications and it is therefore important to seek advice from a family lawyer at the earliest stage.
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Disclaimer
This information is intended for general informational purposes only and does not constitute legal advice. We recommend seeking professional advice before taking any action on the information provided. If you would like to discuss your specific circumstances, please feel free to contact us on 0800 2800 421.
