The court can only make a financial remedy order if an application has been made. This can be either by ticking the relevant box in the divorce petition or issuing an application on a Form A. It is usual practice to tick the box in the divorce petition with regard to making a claim for a financial order even if the petitioner does not intend to seek such an order. If the person who re-marries has not made a claim then they are de-barred from seeking a financial order in the divorce proceedings. This is called the re-marriage trap.
The Court of Appeal in the case of Whitehouse-Piper v Stokes confirmed that if the person who re-married was the petitioner and they had indicated their intention to pursue a financial claim in the divorce petition then this is sufficient for the court to deal with their financial claim even though they have re-married.
There is no time limit on applying to the court for a financial order. In the case of Vince v Wyatt a wife was allowed to make an application 27 years after separation.
Financial claims are not automatically dismissed on Decree Absolute, they can only be dismissed by the court. It is always sensible therefore to try and agree a clean break financial order when there are no relevant assets at the time of divorce.
The barring orders prevent the court from transferring property or making lump-sum orders. For example, if a husband agrees to the wife remaining in the family home with the children following the divorce and there is no formal agreement, and he re-marries, then he cannot apply for a property adjustment or a lump sum order within the divorce proceedings. He will have to pursue his claim through the Trusts Of Land and Appointment of Trustees Act (TOLATA) in respect of the jointly owned property.
The case E v E shows how important it is for client’s to inform their solicitor if they intend to re-marry before a financial agreement has been incorporated into a court order. In that case the parties had reached an agreement whereby the wife was to make a lump-sum payment of £250,000 to the husband. The husband re-married in Bali a matter of days before his solicitor lodged a Form A and the consent order. The Judge found that there was no jurisdiction to approve the consent order.
The re-marriage trap, however, does not bar claims being made against pensions. Often, parties will consider making a claim on a former spouse’s pension when they are nearing retirement. However, whether or not the court will allow the ex-spouse to make a claim or the amount of such claim will depend on the circumstances, in particular, the contributions made to the pension prior to, during and post-separation. The length of cohabitation/marriage will be a relevant factor.
If you would like to find out more information about the issues raised above, please contact Susan Taylor. 0161 883 0460 or email firstname.lastname@example.org