I didn’t obtain a financial settlement and I’ve now re-married, can I make a claim against my former spouse for financial relief?

The “re-marriage trap” is a reference to the limitations on making a claim for financial relief when a party has re-married (applies to dissolution of civil partnerships as well).

One of the questions asked on a divorce or dissolution application form [D8] is ‘Do you want to apply for a financial order?’ and even if you tick the ‘yes’ box, that will not lead to action on the court’s part - as many of you reading this will know, you will need to complete Form A or Form A1 and pay a separate court fee to trigger the financial remedy court timetable.

One can still make a claim on Form A/A1 even if the box isn’t ticked.  One can do this even after the final divorce decree (decree absolute) has been granted.  Even if many years have passed by. 

But, if you have re-married and the court dismissed any claims for financial relief (whether the box was ticked or not), you are barred from applying for a financial provision order and also from a property adjustment order.

You can however, make an application for a pension sharing order. 

[s.28 (3) Matrimonial Causes Act 1973]

What then of your client who has re-married but of his/her ex-spouse who has not re-married? There is nothing to stop that party from applying for a financial provision order/property adjustment order and, for seeking an order in favour of the re-married party.

A quick checklist then of things to ask about/look out for when a client approaches about the above:

1. Check if your client was the applicant/respondent in the original application for divorce/nullity/judicial separation:

(a) Was any application for financial order made;

(b) Was it made by way of an answer to the divorce;

(c) Was it made by way of Form A/A1.

2. Check whether any application for financial order was made within the application (or on Form A/A1):

(a) If yes, was it dismissed? If yes, then your client who has re-married cannot make any application.

(b) If it wasn’t dismissed:

(i) The party who has re-married can still apply on Form A/A1 as long as the financial application in the first divorce was not dismissed;

(ii) The party who has not re-married can apply in any event.  S.28(3) excludes the re-married client from making an application but, it does not explicitly state that the court is barred from making an order in favour of that re-married party.

Factors the court will consider on any application for financial order, whether or not there has been a delay in making the application

The court will exercise its discretion taking into account the factors set out in s.25 MCA 1973, including the financial resources available to the parties.  Do advise your client that the court is also likely to consider the resources of your client’s new spouse and that this may reduce his/her financial needs.

Delay

Though delay is not a bar to issuing financial relief proceedings, you may want to ensure your client is aware of the potential difficulties/pitfalls:

1. Increased costs

2. Loss of documents

3. Potential inability of the court to properly consider full merits of the case

So are there no options at all for a client who has re-married and who has no claim at all, once we’ve looked at the above?

Consider the following:

1. Pension sharing order – s.28(3) MCA 1973;

2. Application under Trusts of Land and Appointment of Trustees Act 1996 [TOLATA] or the Married Women’s Property Act 1882

In relation to property, see how any properties were purchased (ask for the deeds/TR1 if any, etc..) and there may be a possibility for arguing ownership of shares in the property

3. Schedule 1 Children Act 1989 where you are seeking provision for a child of the family.