Section 28 (3) Matrimonial Causes Act 1973 provides that:
If after the grant or making of a decree or order dissolving or annulling a marriage either party to that marriage remarries whether at any time before or after the commencement of this Act or forms a civil partnership, that party shall not be entitled to apply, by reference to the grant or making of that decree or order, for a financial provision order in his or her favour, or for a property adjustment order, against the other party to that marriage.
This means that if a divorced party remarries (or enters into a civil partnership) without first commencing (but not concluding) an application for a financial remedy order, they are barred from doing so. They have fallen into what is known as the remarriage trap.
Similarly, Schedule 5 paragraph 48 Civil Partnerships Act 2004 states that:
If after the making of a dissolution or nullity order one of the civil partners forms a subsequent civil partnership or marriage, that civil partner is not entitled to apply, by reference to the dissolution or nullity order, for—
(a) an order under Part 1 in that civil partner’s favour, or
(b) a property adjustment order,
against the other civil partner in the dissolved or annulled civil partnership.
This created a remarriage trap for civil partners just as it does for married people in divorces.
This may have made sense in 1973 when the Matrimonial Causes Act was passed by parliament, but it doesn’t make much sense now. Why should you lose the ability to apply to the Family Court for a share of the parties’ assets just because you’ve remarried or entered into a civil partnership? It is appropriate for them to no longer be able to apply for an order for periodical payments of spousal maintenance from their ex-spouse (all spousal maintenance orders end on the recipient’s remarriage or civil partnership), but how can it be fair for then to be unable to seek a share of the equity in the family home and other assets to which they have probably contributed directly or indirectly during the marriage?
People who find themselves in this position will struggle. They may be able to make a claim in the civil courts for an order for sale of a property and a declaration of beneficial interest under the Trust of Land and Appointment of Trustees Act 1996 (a statute usually only used by unmarried cohabitants), but while such a claim ought to achieve fairness, it may not meet their needs. It is also inadequate legislation in urgent need of reform (see Family law stuff that makes no sense – Part 1)
Moreover, the remarriage trap only prevents applications for property adjustment orders, lump sum orders and periodical payments orders (and also orders for sale of a property, which can only be made where the court also makes a property adjustment order, lump sum order or periodical payments order). It does not prevent an application for a pension sharing order or pension attachment order. Why?
It is difficult to understand why pension orders are not prohibited while the remarriage trap prevents financial remedy orders and property adjustment orders are being made. I don’t know why. It appears to have been overlooked when pension attachment orders were introduced in 1996 and when pension sharing orders became possible in 2000. Perhaps it was a deliberate act by whoever drafted the changes to the Matrimonial Causes Act 1973 at that time. Either way, it makes no sense.
7 June 2025
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