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Can we divorce now and deal with the finances later?

This is a question which is asked time and time again on Wikivorce.

There will inevitably be cases where a divorce will be followed by the re-marriage of one spouse, or both.  In many cases, the wish to re-marry was the reason for the divorce.  No doubt there will be cases where one spouse or both will want to jump the broomstick as soon the ink is dry on the decree absolute.

We can sort out the finances later, can’t we?

Yes, but is this a good idea, and what are the implications?

In the first place, it is possible to re-marry as soon as the Decree Absolute is issued, but for reasons which are purely pragmatic, we would advise people not to be in too much of a hurry to enter into a second marriage.  We have seen too many people who have managed to escape from a disastrous marriage, and then rushed to fill the emotional void, and the second marriage has been every bit as disastrous as the first.

There is no doubt that re-marriage after divorce can have an effect on the subsequent financial settlement.  The most drastic scenario is the so-called “re-marriage trap” which, in a nutshell, means that a party who has remarried can’t make any financial claims against their former spouse at all.  The matter is considered in more detail later.

The presence of a new partner will often make it harder to settle the finances from the former relationship.  An ex can be quite bitter about seeing his or her former partner happily hitched, and can easily become resentful and less inclined to co-operate.  This is especially so if husband or wife Number 2 has moved into the former marital home.

And then there could easily be arguments about the new partner’s finances, and whether he or she could be forced to give evidence, and so on, ad nauseam.

There may be cases where there is very little in the way of assets to argue about.  In cases like this, an informal solution worked out on the back of an envelope can often be sensible, as long as you understand the possible snags and as long as the parties keep to their agreement.

Another common question is, “We came to a decision that she’d get the house, he pays child maintenance, he keeps his pension and the family cat, and we divide the furniture equally.  Why can’t we just make a decision without going to Court?”
Well, in one sense, there’s no reason at all.  Why not?  As long as both parties do what they agreed to do, there shouldn’t be a problem.  The difficulties arise when, for one reason or another, the circumstances change.  One of the former spouses wins the Lottery or inherits half a million from Great Aunt Jemima, and the ex wants a share.

This item  goes on to deal with the question as to whether it is possible to have a legally binding agreement, drawn up with the aid of lawyers, and not to involve the Court at all.

The re-marriage trap

This arises from section 28(3) of the Matrimonial Causes Act 1973 and means that if you re-marry you cannot thereafter make a financial claim against your former spouse.  However, if the claim had already been made before the second marriage, it remains valid and can still be dealt with.

This has one unfortunate side effect: in the divorce petition, the petitioner is invited to tick the boxes, saying that she or he intends to claim a financial order, a pension share, or whatever.  However, the respondent is not given a similar opportunity in the Acknowledgment of Service.  Some believe this to be discriminatory; apparently, if the petitioner ticked the boxes, that constitutes a valid claim, and therefore she or he does not lose her or his rights by re-marriage.  By contrast, the respondent, if he or she wishes to make a claim, must file form A ( and pay the appropriate fee ).  There is no corresponding opportunity to tick the boxes.

It is important to note one thing.  A remarriage of either party, or both, can have significant consequences when the finances are settled.  This is true even if the claim is not barred by the re-marriage.  Some  firms of solicitors require their divorce clients to notify them of any intention to re-marry or form a new relationship, and if they don’t tell their solicitors, then any consequences are on their own heads.

Can we draw up a legally binding agreement and do we have to go to Court ?

This is certainly a reasonable question, and the answer is that you can, but the key question is whether the agreement is legally enforceable.  Obviously if it isn’t, it is of very little value.  In the important case of Edgar v Edgar [1980] EWCA Civ 2, the Courts said that such agreements should be enforced unless there were good reasons to the contrary.  It would be wise to make sure:

1. That both parties had access to independent legal advice on their own account;
2. That there should be full financial disclosure on both sides;
3. That there should be a “cooling-off” period for both sides before the agreement is signed.

The great advantage of a Court order is that it can exclude the possibility of later claims by either party.  A Court order offers a greater degree of certainty.

Why re-marriage can affect a financial settlement

There are many reasons why a re-marriage can affect the outcome of negotiations for a financial order.

It will put paid to any possibility of spousal maintenance.  It would make it very unlikely that the Court would consider a “Mesher order” (whereby one of the former spouses, usually the wife, is given the right to occupy the former marital home for a time, until a triggering event).  It could weaken any claim by the re-married spouse to the former marital home, if that spouse moves into accommodation provided by the new husband.

If you intend to re-marry, you should at least take legal advice as to the possible implications for a financial order.

Is there a time limit for claims?

Probably not as such; but to make a late claim it is necessary to get leave of the Court.  The later the claim, the less likely it is that leave will be granted.

Even if leave is given, there will always be the possibility that the other spouse may have made arrangements in good faith in the belief that no claims were likely to be made, and the Court may not be able to unscramble them.

The only safe advice, therefore, is that any claim should be made as soon as possible.  It is not worth taking the risk that leave will be refused.

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