The remarriage trap: what happens if you remarry before your financial settlement is finalised?
This article is for general information only. It does not constitute legal advice. Every situation is different, and you should speak to a solicitor about your specific circumstances before making any decisions. Tyrer Roxburgh offer a fixed fee family law consultation to discuss your legal options.
The term ‘remarriage trap’ refers to a specific legal problem. If you remarry, or enter a civil partnership, before your financial claims against your former spouse are formally settled by a court order, you may lose the right to make certain claims altogether.
What the remarriage trap actually means
Under the Matrimonial Causes Act 1973, married couples have the right to make financial claims against each other on divorce. These claims cover property, capital, pensions, and income. However, the Act also contains a provision that extinguishes some of those claims the moment you remarry.
Specifically, section 28(3) bars a party who has remarried from applying for a financial provision order or a property adjustment order against their former spouse. A financial provision order covers periodical payments (regular maintenance), secured periodical payments and lump sum orders. A property adjustment order covers the transfer or sale of property. Once you walk down the aisle a second time, those doors close.
One significant claim does survive. Pension sharing orders are defined separately, at section 21A of the Act, and section 28(3) was never amended to cover them when pension sharing was introduced in December 2000. The right to apply for a pension sharing order is therefore not lost on remarriage. Since a pension is often the most valuable asset after the family home, this matters — although it should never be treated as a substitute for dealing with finances properly.
Spousal maintenance, by contrast, is doubly affected. A claim is barred by section 28(3), and any existing periodical payments order in your favour also comes to an end on your remarriage under section 28(1) and (2).
Why does this problem happen?
It happens because people assume that sorting out the divorce itself is enough. In England and Wales, a divorce and a financial settlement are two separate legal processes. Getting a final divorce order (previously called a decree absolute) does not resolve your finances. It simply ends the marriage. GOV.UK sets out the basics in its guide to money and property when you divorce or separate.
Separation alone never ends a marriage either, however long it lasts, as our guide to the myth of automatic divorce after 7 years explains. Financial claims remain open indefinitely until a court order, known as a consent order, formally closes them. Without a consent order, your former spouse retains the theoretical right to make financial claims against you, and vice versa. Many people do not realise this, even years after the divorce is finalised.
There is an important qualification, and it is the one most often missed. What section 28(3) bars is applying after remarriage. If a financial remedy application has already been issued, or your financial claims were preserved in the divorce application itself, the bar does not bite. Where claims were not preserved, or where you were the respondent to the divorce, a Form A needs to be issued before the new marriage takes place. You do not need the settlement finished, but you do need the application in.
Get that wrong and you lose the right to bring those claims, while your former spouse, not having remarried, retains theirs against you. This is an asymmetry that can leave you in a very weak position.
When is the remarriage trap most likely to become a problem?
When finances appear to be settled informally
Couples sometimes divide assets between themselves without going to court, particularly in an uncontested divorce. They sell the house, split the money, and move on. This feels resolved, but it is not legally final. In addition, circumstances change. A business may grow. An inheritance may arrive. A pension that seemed modest may turn out to be substantial.
Without a consent order, your former spouse could come back years later and make a claim. Remarrying before that order is in place removes your ability to make a counterclaim, and in many cases, your ability to protect yourself fully.
When there are no significant assets immediately after divorce
Some couples divorce when their financial position is modest. There may be little to fight over at the time. As a result, they skip the financial settlement process entirely and focus on getting on with their lives.
However, finances often look very different five or ten years later. If you accumulate significant wealth, your former spouse may still have an open claim. Remarrying means you cannot use your own potential claims as a negotiating tool or protective measure.
When one party delays intentionally
This is less common, but it does happen. If your former spouse is deliberately slow to engage with financial proceedings, you may feel frustrated and choose to move forward with your life. That is understandable. However, doing so without advice from financial settlement solicitors carries real risk. The remarriage trap does not care about your reasons.
When cohabitation is confused with legal marriage
Some people live with a new partner for years before marrying officially. Cohabitation does not trigger the bar, however long it lasts. However, once they marry or register a civil partnership, the bar falls. People sometimes forget this distinction, especially when a long cohabitation leads to a low-key registry office ceremony.
Can you undo the remarriage trap?
In most cases, no. The courts have very limited discretion to reopen claims once the bar applies. There have been cases where the courts have found creative solutions, but these are exceptions and cannot be relied upon. The safer approach is to avoid the trap entirely.
If you have already remarried without a consent order in place, speak to a solicitor as soon as possible. There may be some limited options available, depending on your specific situation. For example, periodical payments claims may still be available in some circumstances, though these are often not the most valuable remedy.
What does a consent order actually do?
A consent order is a document that records the financial agreement between you and your former spouse and submits it to the court for approval. Once approved by a judge, it becomes legally binding. It also formally closes the financial claims between you, so neither party can come back later with new demands.
In practice, consent orders cover how assets are divided, what happens to the family home, how pensions are shared, and whether any ongoing maintenance is payable. The court will review the agreement to make sure it is fair to both parties, and also to any children involved, before approving it.
Why a ‘clean break’ matters
A clean break order is a type of consent order that severs all financial ties between the parties permanently. After a clean break, neither party can make future claims against the other, regardless of how circumstances change. For many people, this is the most important protection available.
A clean break is not always appropriate. Where there are ongoing financial needs, for example where one spouse has given up a career to raise children, some ongoing financial provision may be necessary. However, where it is appropriate, a clean break gives both parties genuine finality.
Getting advice before you make any decisions
The remarriage trap is one of the more serious risks in divorce law precisely because it is irreversible. It is also one of the most avoidable, with the right advice at the right time.
If you are divorced or going through a divorce and are considering remarrying, take legal advice first. The same applies if your former spouse has remarried and you have not yet finalised your financial settlement. Your position and your former spouse’s position may be very different.
Tyrer Roxburgh Solicitors advises clients across England and Wales on divorce financial settlements, consent orders, and clean break orders. We offer a fixed-fee consultation so you can get clear, specific advice about your situation without uncertainty about cost.
Book a fixed-fee family law consultation
Frequently asked questions about the remarriage trap
Q: Does the remarriage trap apply if I just live with a new partner?
No. Cohabitation, however long, does not trigger the remarriage trap. The bar only applies when you formally remarry or register a civil partnership. However, you remain at risk until a consent order is in place, so it is still sensible to finalise your financial settlement.
Q: My former spouse has remarried but I have not. Can they still make claims against me?
Not for the claims caught by section 28(3). The remarriage trap applies to the person who remarries, not to both parties automatically. So if your former spouse remarried without having already issued a financial remedy application, they can no longer apply for a lump sum or a property adjustment order against you, although a pension sharing claim may still be open to them. You, not having remarried, retain your claims against them. This asymmetry can work in your favour, but you should take advice quickly.
Q: We divided everything informally. Do we still need a consent order?
Yes, in most cases. An informal agreement is not legally binding and does not close the financial claims between you. Either party can return to court in future and seek a different outcome. A consent order is the only way to make your agreement permanent and enforceable.
Q: How long does it take to get a consent order?
The timeline varies. Once both parties agree on the financial terms, a solicitor can draft the order. The court then reviews and approves it. In straightforward cases, this process can take a few months. However, if negotiations are needed first, or if the court has a backlog, it may take longer. Starting the process early avoids unnecessary delays.
About the Author
Vasoulla Constantinou is a partner at the firm and Head of Family Law. She is a SRA regulated family law solicitor with over 20 years of experience and has been awarded a specialist accreditation by Resolution, an organisation committed to the constructive resolution of family disputes in a non-confrontational manner. Vas advises clients on all matters relating to family law including divorce, financial issues and child law. For more information visit her full profile.
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