The Remarriage Trap: What Every Divorced Person Should Know Before Saying “I Do” Again

Under Section 28(3) of the Matrimonial Causes Act 1973, where a party remarries after divorce, that party is generally barred from applying against their former spouse for a financial provision order or a property adjustment order.

This is the issue that catches more people than almost any other, and it has become increasingly common since the introduction of no-fault divorce, as these changes make it easier for separating couples to deal with their divorce themselves.

Whilst dealing with your own divorce may seem cost-effective, many couples are missing out on the right to share valuable assets on divorce.

Once a divorce Final Order (formerly Decree Absolute) has been made, your marriage legally ends.

Unless a court grants a financial order, including a clean-break consent order, financial claims with your former spouse will remain open and unresolved. Divorce ends the marriage but does not settle money, property, pensions, or financial matters unless separately ordered.

Remarrying before resolving these claims can have severe consequences.

What you lose

By remarrying without a financial order in place, you may lose your right to bring the most important financial claims against your former spouse, including:

• Spousal maintenance
• Lump sum orders
• Transfer or sale of property
• Settlement of property
• Other property adjustment orders

The main exception is pension sharing. Pension sharing orders are not caught by the statutory remarriage bar in Section 28(3) so a remarried former spouse may still be able to seek a pension sharing order.. However, losing claims to property, capital, and income is a steep cost.

The one-sided consequence

The remarriage trap is harsh because it affects only the one who remarries.

If you remarry but your former spouse does not, they may still make a financial claim against you.

Where no financial order has been made, divorce alone does not prevent future claims. Which means that you could lose your claims, and they keep theirs.

This asymmetry surprises many.

Many people assume divorce settles all matters. With no-fault divorce and online applications, this is riskier than ever.

The divorce process is now quick and administrative, but it ignores finances. More are legally divorced yet financially exposed, only realising the risk when it' istoo late.

How to protect yourself

The solution is simple: ensure a financial order is approved by the court before remarrying. Informal agreements are unenforceable until approved by the court.

A clean break consent order, drafted by a solicitor and approved by the court, ends all claims and ensures certainty before a new marriage.

If you have already divorced without a financial order, act now before remarrying and seek urgent legal advice to protect your interests.

This is another issue that surprises a remarkable number of people. Under English law, getting married generally revokes any existing Will.

It does not matter how recently the Will was drafted, how carefully it was prepared, or how clearly it reflects your wishes. Unless it was made specifically in contemplation of your upcoming marriage and with precise legal wording, it will almost certainly be revoked by your new marriage.

Why does this matter so much in a second marriage?

If you die without a valid Will, you die intestate. That means the intestacy rules determine who inherits your estate, not you, and they were not designed with blended families in mind.

In practice, this often means a new spouse inherits most, or even all, of the estate, leaving children or other family members with little or nothing.

Children from a previous relationship, those many second-time spouses want to protect, can end up receiving far less than intended, sometimes nothing until the surviving spouse also dies, by which point the estate may be diminished or passed elsewhere.

The mismatch between what people assume will happen and what happens under the intestacy rules is one of the most common causes of family disputes after a death.

What to do about it

If you plan to remarry, updating your Will should be immediate, not delayed.

You can either make a new Will that is expressed to be in contemplation of your upcoming marriage (so that it survives the marriage) or make a new Will immediately after the ceremony.

Either way, the important thing is not to leave it to chance.

This is particularly important if you have children from a previous relationship, own property, or have assets you want to protect for specific people.

If you currently receive spousal maintenance (periodical payments), remarriage will almost always stop those payments immediately and automatically. When you remarry, you lose your legal right to receive these payments from your former spouse, regardless of your financial situation.

This can cause serious financial shock if unplanned. Maintenance may cover mortgages, bills, or living costs. Losing income while taking on new financial commitments can create real pressure.

Even living with a new partner, without marrying, can prompt your former spouse to try to reduce or end maintenance payments.

The court will consider all circumstances, including financial support from your new partner, and may vary the original maintenance order.

Questions worth asking before you remarry

Before setting a date, consider the financial implications honestly:

• Can you manage without maintenance? If it covers key expenses, account for its loss before the wedding.
• Have you included this in your financial planning? If you rely on maintenance, plan for how you will cover costs when it stops.
• Would it make sense to negotiate a lump sum before remarrying? In some cases, you may agree to a single payment instead of ongoing maintenance, also known as capitalising maintenance. This can provide certainty for both parties and may be worth discussing with your solicitor before you remarry and lose the right to claim.

People entering a second marriage often have different finances: assets, property, businesses, pensions, inheritances, and children to protect.

This reflects broader remarriage trends. The ONS reports that remarriage is most common among men aged 60 to 69 and women aged 50 to 54, meaning many couples are entering marriage later in life with established assets, businesses, pensions and inheritance considerations.

This makes a prenuptial agreement significantly more relevant in second marriages.

What can a prenuptial agreement do?

A well-drafted prenuptial agreement sets out in advance how finances would be handled if the marriage were to end.

It can ring-fence pre-marital assets, protect business interests, preserve inherited wealth and ensure that children from a previous relationship are not disadvantaged.

A prenuptial agreement is realism, not planning to fail. Those who have divorced often know that marriages may not last and that setting clear expectations strengthens relationships.

Are prenups enforceable?

Prenuptial agreements are not automatically legally binding in England and Wales, but the courts now give them significant weight, provided certain conditions are met.

The agreement should be entered into freely by both parties, without undue pressure. Both parties should have received independent legal advice so that they understand what they are agreeing to and what they might be giving up.

There should be full and frank financial disclosure, so that neither party can later claim they didn’t know the full picture. And the agreement should be signed well in advance of the wedding, not the night before.

Where these conditions are met, the courts will generally uphold a prenuptial agreement unless doing so would leave one party in a position of real financial hardship.

The cost of a properly prepared prenuptial agreement is modest compared to the cost of contested financial proceedings on divorce. For anyone entering a second marriage with assets to protect, it is one of the most sensible investments you can make.

A second marriage is not just about two people.

It often involves children from previous relationships, existing property, pensions and inheritance expectations that need careful handling.

Getting the legal framework right from the start can prevent costly disputes later.

Think carefully about how you own property.

The way you own your home, or any property you share with your new spouse, has significant legal consequences.

If you own property as joint tenants, your share passes automatically to the surviving joint tenant upon your death.

This happens regardless of what your Will says.

For many first-time married couples, this is exactly what they want.

But in a second marriage, it may mean that your children from a previous relationship are effectively cut out of your property wealth, because everything passes to your new spouse.

The alternative is to own property as tenants in common.

Under this arrangement, each of you owns a defined share, which does not have to be equal, and your share forms part of your estate when you die.

You can then leave your share to whomever you choose in your Will, whether that is your children, your new spouse, or a combination of both.

Changing from joint tenants to tenants in common is a straightforward legal process and is one of the most common pieces of advice given to couples in second marriages.

Consider using trusts to protect your children’s inheritance.

One of the most effective tools for balancing competing interests in a second marriage is a life-interest trust.

A life interest trust allows you to leave your share of a property (or other assets) in trust. Your surviving spouse has the right to live in the property and benefit from the assets during their lifetime, but when they die, the underlying capital passes to your children or other chosen beneficiaries.

This means your new spouse is cared for and has a secure home, while your children’s inheritance is preserved and protected, even if your spouse later remarries or their financial circumstances change.

Life interest trusts are not suitable for every situation, and they need to be properly drafted, but they are widely used in second marriage estate planning and are worth discussing with a solicitor if you have children from a previous relationship.

Don’t forget pensions and life insurance.

Pension death benefits and life insurance payouts do not always follow your Will. They are often paid according to a separate nomination or expression of wishes form held by the pension provider or insurer.

Many people forget to update these forms after a divorce. This means that a former spouse could still be named as the beneficiary of a substantial pension lump sum or life insurance policy, even years after the marriage ended.

Before you remarry, check every pension scheme and insurance policy you hold. Make sure the nominations reflect your current wishes and your current family circumstances. It takes very little time to do, but failing to do it can have very significant consequences.

A second marriage should be about looking forward, not leaving unresolved legal issues behind or creating new ones.

The remarriage trap is an avoidable problem.

But it requires action before the wedding, not after. The same is true of Wills, pensions, maintenance and property ownership.

All these issues are straightforward to address with the right advice, and all of them become significantly harder and more expensive to deal with once you’ve already said, “I do.”

If you are planning to remarry, or if you have already divorced without a financial order in place, taking advice now can save you a great deal of difficulty later.

At Myerson, our Family Law team regularly advise clients on protecting their financial position before, during and after divorce, including the specific legal and financial issues that arise on remarriage. If you would like to speak to one of our solicitors, please get in touch.