Remarriage can introduce a host of unexpected challenges when it comes to financial settlements following a divorce. In particular, if a spouse remarries too swiftly, they risk losing certain financial claims against their former partner under the Matrimonial Causes Act 1973 (MCA 1973). Often referred to as the “elephant trap” (a phrase coined by the late Singer J in E v E [2008] 1 FLR 220), this predicament can have severe consequences.
This article examines the relevant statutory framework, key case law, and practical considerations for solicitors and clients alike. It also offers a real-life example illustrating how easily one might fall into this trap—and how to avoid doing so.
1. The Statutory Context
1.1 Matrimonial Causes Act 1973
One of the most pivotal provisions concerning remarriage is contained in section 28(3) MCA 1973. If a spouse has remarried, they lose the right to ask for some financial orders. This includes orders for financial support, like regular payments or one-time payments. It also includes property adjustments, such as transferring or settling property. Notably, s 28(3) explicitly states:
“If after the grant or making of a decree or order dissolving or annulling a marriage either party to that marriage remarries … that party shall not be entitled to apply … for a financial provision order in his or her favour, or for a property adjustment order…”
This means that, should a divorced spouse tie the knot again before making an application under the MCA 1973, they will be prevented from later pursuing those types of orders against their former spouse. Such a bar on applications can leave individuals in precarious positions, particularly where they may have been expecting to receive or negotiate a capital sum or interest in the former matrimonial home.
1.2 Civil Partnership Act 2004
A similar rule applies under Schedule 5, paragraph 48 of the Civil Partnership Act 2004. This rule is for people who start a new civil partnership or marriage after ending a previous one. The concept is the same: once remarriage (or a new civil partnership) has taken place, the law restricts the type of financial relief that the remarried (or re-partnered) individual can seek.
2. What Is Caught by the Bar?
Section 28(3) MCA 1973 prevents an individual who has remarried from applying for:
- Financial provision (s 23 MCA 1973), which covers maintenance in the form of periodical payments, secured periodical payments, and lump sum orders.
- Property adjustment orders (s 24 MCA 1973), such as transfers of property and settlements of property.
The aim is to prevent an ex-spouse who has remarried from reaching back to alter financial arrangements from their former marriage. However, it is crucial to appreciate that this bar does not extend to pension sharing orders.
Following the introduction of pension sharing under the Welfare Reform and Pensions Act 1999, section 28(3) MCA 1973 was never updated to include pension sharing within its definition of financial relief. This curious omission means that, even if one has remarried, one could still apply for a pension sharing order against one’s former spouse.
3. Falling into the Elephant Trap
3.1 Premature Remarriage
Timing is critical. The “elephant trap” describes a scenario where one spouse (eager to remarry) neglects to secure final financial orders under the MCA 1973 before walking down the aisle again. Once remarried, the new spouse is effectively barred from making applications for financial provision or property adjustment orders against the former spouse.
In practice, many clients underestimate the importance of formally concluding financial arrangements before remarriage. Some assume the divorce decree absolute automatically settles all financial claims, or they remain on amicable terms with their ex-partner and assume nothing could go wrong. Unfortunately, without a sealed court order, verbal or informal agreements can collapse—or, worse still, be legally barred once the spouse remarries.
3.2 E v E [2008] 1 FLR 220
A stark cautionary tale is provided by E v E. The husband remarried in Bali after negotiating and signing a consent order for the wife to pay him a lump sum. However, that consent order had not been submitted to the court before his new marriage.
Singer J held that the court had “no jurisdiction” to make the order in the husband’s favour post-remarriage. The husband was barred from financial provision claims because he had not made a valid application before the wedding ceremony. The outcome was crushing: the consent order the parties had painstakingly agreed to became worthless once the remarriage took place.
4. Preserving Financial Claims
4.1 Valid Application Before Remarriage
A central question is what constitutes a valid application. An application for financial remedies may be lodged in several ways:
- Including a claim for financial provision in the original divorce application (or petition in older terms).
- Filing a separate Form A or Form A1 to commence formal financial remedy proceedings.
Merely indicating an “intention to apply” on an acknowledgement of service form is not enough. In Hargood (formerly Jenkins) v Jenkins [1978] Fam 148, the court made it clear that a “mere answer” to a divorce petition did not constitute a valid application. So, if a spouse is the respondent in the divorce, they must formally issue Form A (or Form A1 if applying for certain types of orders) before they remarry to preserve their claims.
4.2 Strategic Considerations
Clients should be cautioned to think ahead. Those keen to remarry quickly may assume they can deal with finances “later,” but in doing so, they risk losing crucial rights. Solicitors should advise:
- If you are the divorce applicant, ensure you tick the box seeking financial orders in your petition (or divorce application) if you suspect you will need any form of relief in the future. You may issue Form A/Form A1 at a later stage—even after remarriage—because you have already preserved the claim.
- If you are the respondent, or if you failed to request financial orders in your own divorce petition, you must file Form A/Form A1 before remarriage to avoid the bar under s 28(3) MCA 1973.
5. Real-Life Example
Imagine a couple, Matthew and Clara, divorcing after ten years of marriage. They verbally agree that Clara will remain in the family home with their children while Matthew moves out, and they plan to sort out the financial details “in a few months.” However, Matthew meets someone new and decides to remarry almost immediately. Keen to finalise the divorce, he does so without seeking any formal financial orders or legal advice.
After Matthew`s remarriage, Clara has a change of heart about transferring any share of the property to him. Believing she can manage alone, she refuses to proceed with any formal settlement. As Matthew has already remarried, s 28(3) MCA 1973 prevents him from issuing a new application for a property adjustment order pursuant to the MCA.
He realises too late that his verbal agreement with Clara is unenforceable. His only option might be to explore a Trusts of Land and Appointment of Trustees Act 1996 (TLATA) claim if the property is legally in joint names—but he loses many of the discretionary advantages that the family court might have employed under the MCA 1973.
6. Alternative Remedies
6.1 TLATA Claims
Where there is owned property but the remarried spouse is barred from MCA 1973 claims, a TLATA application may provide a limited route to resolve disputes over co-owned property. However, TLATA proceedings are based strictly on property law principles, rather than the broader fairness-based discretion of the family court. As seen in Tee v Tee and Hillman [1999] 2 FLR 613, the court frowns upon using TLATA simply to circumvent family proceedings. Yet, it might be the only option in certain unfortunate circumstances.
6.2 Schedule 1 Children Act 1989
If the couple has dependent children, a Schedule 1 Children Act 1989 claim can help secure housing or maintenance arrangements for the child’s benefit. This remedy, however, benefits the child rather than the remarried spouse directly. It can provide a home for the children until they reach majority, but it does not transfer any financial resource to the parent beyond child support or a housing settlement.
6.3 Pension Sharing Orders
Pension sharing remains an option irrespective of remarriage. This loophole exists because the legislation introducing pension sharing never extended the s 28(3) MCA 1973 bar to include pension-related claims. While this might provide some avenue for financial settlement, it is usually inadequate if the spouse needs capital or property.
7. The Debate on Piggybacking
One contentious issue is whether a remarried spouse can still benefit from an order in their favour if the other spouse has made a valid application. Some decisions, such as Robin v Robin [1983] 4 FLR 632, suggest a remarried spouse cannot simply “piggyback” on an application made by their ex-spouse.
Others, such as Whitehouse-Piper v Stokes [2008] EWCA Civ 1049 and the Isle of Man decision in Hyslop v Hyslop 2DS 2022/13 and 2DS 2023/03, explore whether the courts may still have jurisdiction to make certain adjustments in favour of a spouse who has not personally issued a valid application before remarriage. The question is still not fully resolved in England and Wales. It is commonly believed that breaking the remarriage rule reduces the chances of getting helpful orders.
8. Practical Takeaways
- Issue Early: Advise clients to issue their financial remedy application (or at least include financial claims in the divorce petition) before remarrying.
- Be Specific: Remember that indicating an intention to seek financial relief is not sufficient; one must file the correct documentation (e.g., Form A).
- Watch the Timings: Even if negotiations are nearly concluded, a marriage at the wrong time can extinguish vital claims.
- Consider Pension Sharing: If all else fails and the client has already remarried, they may still have an avenue for pension sharing.
- Stay Alert for Exceptions: Explore alternative remedies like TLATA or Sch 1 Children Act 1989 claims if the client is caught out, but recognise these may offer narrower or different forms of relief.
Conclusion
The bar on certain financial claims following remarriage, set out in s 28(3) MCA 1973, remains a serious trap for the unwary. Many people do not appreciate that a divorce does not automatically settle financial matters and that a formal application is essential. Falling into this “elephant trap” can have drastic consequences, leaving individuals unable to claim maintenance or receive a fair share of the family home.
Whilst the complexities of the bar’s scope, particularly around the possibility of “piggyback” claims, ware yet to be fully resolved, the clear message is to act promptly. Advisers should ensure that clients contemplating remarriage fully grasp the danger of leaving financial matters unresolved. If in doubt, a well-timed Form A (or other valid application) will preserve rights and avoid the nightmare of trying to navigate property law claims or entrench oneself in uncertain case law. Ultimately, prudent and timely legal advice remains the most reliable defence against this elephant trap.