The cynics among you might comment that of course remarriage is a risk for those who have only just recovered from the stress and upset of a divorce. Who would want to go through that again?! We are fundamentally, however, a romantic lot and many, many divorced people go on to remarry and live very happily ever after. This is not, therefore, an article about living in a cave and forsaking all others after divorce, but rather about the timing of remarriage. Timing really is everything, and an inherent danger of doing a DIY divorce is that the problems of a badly-timed remarriage are rarely understood until too late to rectify.
By the way, this is a four-part series on DIY divorce, and remarriage is part three. You can read the rest of the series via the following links below.
Part 1: Mortgages
Part 2: Pensions
Part 3: Remarriage
Part 4: Tax
The importance of a financial order
The biggest problem with mistiming remarriage relates to financial claims. Those who do a DIY divorce often focus on the divorce process to end the marriage, and commonly reach a casual arrangement about finances. Where trust exists between a couple, they may agree how to divide financial assets but do not enter into a binding financial Order. The couple often consider that a financial Order is an unnecessary formality and/or it is seen as an unnecessary expense. If they trust each other, what can go wrong? A lot, potentially. Once divorced but with no financial Order, matrimonial financial claims stay open beyond the life of the marriage and few people appreciate this. Only a financial Order, approved by the court, can provide for enforceable financial arrangements and a financial clean break to end claims between a married couple.
Ordinarily, couples have claims against one another for income, capital, property and pension in life and on death. If a spouse remarries, only their pension claims remain live after remarriage; all other claims are lost. A significant problem can arise if a couple have agreed to delay the implementation of their financial arrangements in a DIY divorce and then try and implement after one of them has remarried. The couple might have agreed that the wife will stay in the family home until the youngest child is 18, and then the property will be sold and the equity shared. That is an arrangement far easier to implement if neither of the couple remarries. As soon as one (or both) of them says ‘I do’ to another, they have lost their property claims. If trust remains, the couple can simply sell or transfer as originally agreed. If trust has become strained, the situation is potentially far more complicated, as property claims are lost to the remarried spouse.
It is a distressing realisation for the remarried person when they understand that they have very limited recourse against an ex who will no longer play ball. Remember, with no financial Order there is nothing to legally enforce. What a person can be left with is a years-old verbal agreement that is not enforceable. The matrimonial route of claim, with its broad horizon of fairness, is now lost to the remarried person. They can only bring their property claim in civil law and the fact of having once been married to the co-owner is simply one of a number of facts for a court to consider, and not necessarily the decisive one.
How to protect financial claims
It is possible to keep financial claims alive after remarriage, but only if formal action is taken prior to the remarriage by making a financial court application. There can be no rectification of lost claims after remarriage. I once had a prospective new client pop in by chance to see me midweek and who was due to remarry that weekend. She was trying to get organised and wanted to arrange an appointment for after her honeymoon to sort out the financial claims from her previous marriage. She had no idea, and was horrified to learn, that it would not be possible to sort them out after the honeymoon. With 48 hours to go until her wedding, there was a mad scramble to the court to get a formal application filed (known as Form A) to preserve her claims against her ex-husband. Having filed Form A prior to her remarriage, she was able to keep her financial claims open and deal with them after her honeymoon, as she intended. As she giggled afterwards: ‘Good job I popped in!’. Good job indeed, even if my stress levels took a little while to recover.
It is also the case that the new spouse also has their own marital claims, which now compete with the ex-spouse. If the remarried spouse then divorces, a scenario can emerge where the new spouse and previous spouse are vying for the same pension or other assets. If the new spouse gets a pension sharing Order, for example, it will diminish the ex-spouse’s pension claims because the pension pot has reduced before they secure their own pension sharing Order.
The potential consequences of not taking legal advice
Some divorces can take several months, even years, to resolve. This need not be because the circumstances are acrimonious; sometimes it can be due to the complexity of the assets, or waiting for an asset to reach its true value before agreeing division. It is not uncommon that during such a lengthy period one or both of the couple will meet new partners and want to start moving on in life. Legal advice prior to remarriage is critical to protect legitimate financial claims before they disappear. The potential consequences of not taking legal advice before making significant life choices connected to divorce and remarriage can be very problematic and expensive to resolve. For some, it can lead to the loss of assets to which they were validly entitled, but for remarrying. It is important to understand, therefore, that if you decide to take this person, you may be forsaking more than just all others.
