The remarriage trap and pension sharing

An application for a financial provision order or a property adjustment order cannot be made if a party has remarried (section 28(3) Matrimonial Causes Act 1973). The Petitioner's financial claims are usually left in the divorce petition but if the claims were crossed out, or it is the Respondent who wishes to make a claim, a Form A needs to be issued prior to any remarriage. However due to an omission when pension sharing was introduced in 2000, no amendment was made to s28(3) meaning that an application for a pension share is possible after remarriage. So, if there has been a delay in resolving financial issues, which is not uncommon with couples attending mediation, and one or both parties have remarried mediators need to be mindful to ensure that any proposals are capable of being put into force. If there is a jointly owned property, an application under the Trusts of Land and Appointment of Trustees Act 1996 is possible but the court will have no power to adjust that person's interest in the property. In the case of E v E [2008] the judge refused to endorse a consent order which provided for the wife to pay the husband a lump sum of £250,000 as he had remarried 3 days prior to the papers being lodged at the court (and the wife could not apply for an order against herself).

(Source: Sue Tilley, 30th September 2020)

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