Committing to a second marriage before the first is properly completed can cause potentially serious financial complications, and it’s always best to seek legal advice before signing on the dotted line.
Planning another wedding can be an exciting distraction from the gloom and bad feelings that so often accompany divorce. The temptation to get on with that second marriage and begin a new life can be a strong one. But anyone getting married a second time without fully resolving financial claims relating to their first marriage may find that their financial rights are significantly reduced. This could mean they are cannot receive their share of properties – for example, the former family home. They will also be unable to apply for financial support, maintenance or make other monetary claims.
A former spouse who remarried quickly can still apply for a share of their ex-partner’s pension, but of course that will not apply until they reach retirement age.
A disheartening number of people stumble into the so-called ‘remarriage trap’ and suffer significant financial loss.
For most couples, divorce is largely bureaucratic affair, with applications made and forms completed online. This can encourage a casual, DIY approach, in which legal advice seems like a luxury extra they can just as well do without. But avoiding lawyers can be a false economy – and an expensive one at that. A solicitor will make sure you are fully aware of all your legal entitlements during divorce so you do not throw any away unnecessarily.
Separating ‘divorce’ from ‘finances’
Contrary to popular belief, the financial aspects of divorce are separate to the divorce procedure itself. Family lawyers refer to the process of reaching a settlement as ‘financial remedies’. These run alongside the divorce process, but are not always completed before the decree absolute brings the marriage to a formal end.
So how do you avoid the remarriage trap and make sure you don’t lose out financially from a second marriage? The simplest answer is: make sure the financial remedies procedure is complete before you sign that certificate. This means turning the settlement reached with your first spouse into a legally binding financial order – also known as a ‘consent order’ (because both parties have consented to the provisions). A family lawyer will help you navigate the complexities of this process.
Timing financial orders and avoiding the remarriage trap
In family law, the timing of financial proceedings in relation to remarriage is critical. To safeguard your financial position, it is essential to ensure that Form A, which formally applies for financial relief, is filed before remarrying. Even if you’re still negotiating the terms or expect to settle amicably, filing Form A keeps the door open. That said, if your second husband or wife has assets and you are living a comfortable new life with them, the family courts may decide your needs are lower than they were before the second marriage and therefore you should receive less from your first spouse.
Ideally, the consent order resolving financial matters should be sealed by the court before you enter into a second marriage. Failing to act early can result in significant financial loss or missed entitlements. For example, a person who sacrifices their career during the first marriage but delays seeking spousal support may find they have no recourse if they remarry without formalising a financial agreement with their ex-spouse.
The financial dynamics of second families
Second marriages often create complex family arrangements, especially where either or both parties have children from previous relationships. These situations raise important considerations when it comes to fairness, ongoing financial obligations, and asset division. Courts are required to consider all financial circumstances, including obligations to a second family. However, financial responsibilities from a previous marriage cannot simply be ignored in favour of the new one.
Judges will look at both parties’ needs, income, and assets, as well as the welfare of any children. If someone is paying spousal maintenance or child support to a former partner, that commitment won’t automatically end with remarriage, nor will it be displaced by new responsibilities. On the other hand, the court must also avoid overburdening one party to the benefit of another, particularly if the financial strain threatens the viability of the new relationship or affects the well-being of children from the second marriage.
Case law shows that courts walk a fine line. They may consider the income of a new partner but won’t treat it as if it’s shared money unless there’s actual financial interdependence. For example, if your new spouse contributes substantially to your living costs, this may free up your own resources, making them appear more available to meet prior obligations. But courts won’t automatically assume that new partners will pay for everything. This distinction can significantly affect the outcome of maintenance or capital claims.
The role of prenuptial and postnuptial agreements
Although not automatically binding in the UK, prenuptial and postnuptial agreements carry substantial weight in court if they meet certain standards. They are especially useful in second marriages, where one or both parties may wish to ring-fence assets accumulated before the new relationship, including property, savings, and pensions. For individuals with children from a first marriage, these agreements can be an effective way to preserve wealth for the next generation.
To be effective, a prenuptial or postnuptial agreement must be entered into freely by both parties with a clear understanding of the implications. Both parties should have access to independent legal advice, and full financial disclosure is essential. The agreement must also be fair and not prejudice the needs of any children. Courts are more likely to uphold the terms of a well-drafted agreement if it has been properly executed and reflects the circumstances at the time of divorce.
In practical terms, these agreements can define which assets remain separate and how jointly acquired assets should be divided. They can also deal with expectations around spousal maintenance. As couples increasingly enter into relationships later in life, with established careers or inheritances, these agreements offer reassurance and clarity.
Protecting inheritance for children of a previous marriage
One of the most overlooked financial risks in a second marriage is the potential for disinheriting children from a first marriage. When you remarry, any previous will is automatically revoked, unless it was explicitly made in contemplation of the new marriage. Without a new will, the rules of intestacy apply, which may mean that your new spouse inherits the bulk of your estate, leaving your children with little or nothing.
To avoid this, it is essential to make a new will that reflects your wishes. This can include using life interest trusts, where your spouse has the right to live in the home or receive income from assets during their lifetime, but the capital eventually passes to your children. Holding property as tenants in common instead of joint tenants allows each party to leave their share to beneficiaries of their choosing. In contrast, with joint tenancy, the property automatically passes to the surviving owner, regardless of the terms of your will.
Estate planning advice is often necessary to navigate these issues, particularly where inheritance tax is a concern. If you plan to leave assets to children but also want to provide for a new spouse, balancing these interests through trusts, insurance, or staged gifts is often the most secure approach.
Estate planning and inter-spouse transfers
Second marriages can complicate estate planning. As stated above, under intestacy laws in England and Wales, a surviving spouse inherits much of the estate, often to the exclusion of children from previous marriages. The default rules may not align with your intentions, particularly if you wish to divide assets more equitably or preserve family wealth across generations.
To manage this, estate planning should go hand-in-hand with legal arrangements during the marriage. Gifts and transfers between spouses are generally exempt from inheritance tax, but this can change if the spouse is not domiciled in the UK or if the estate exceeds the nil-rate threshold. Strategic use of tax allowances, gifts, and trusts can mitigate tax liabilities, but advice from a solicitor or tax adviser is essential in complex cases.
Pension considerations in second marriages
Pensions can be among the most valuable financial assets, especially in later-life marriages. Yet many individuals overlook them during divorce. Even after remarriage, it may still be possible to obtain a pension sharing order from a previous divorce, assuming financial claims were preserved by filing Form A in time.
Dividing pensions fairly is a technical exercise. Different schemes have different values and benefit structures, and the impact on future income can vary significantly. In second marriages, people may have one or more pensions, including final salary schemes or private arrangements. Actuarial advice from a pensions expert is often necessary to calculate a fair division, particularly where one spouse has a significantly higher retirement provision.
Women in particular are at risk of missing out. Historically, they are more likely to have smaller pensions because of career breaks or part-time work, and many still fail to include pensions in financial negotiations. A fair settlement should consider both current pension values and likely retirement income. In some cases, offsetting pension rights against other assets, such as the family home, may make sense—but this must be carefully evaluated to ensure it doesn’t disadvantage one party later in life.
Clean break orders and future protection
Many couples entering a second marriage wish to achieve financial independence and finality. A clean break order can ensure that once the divorce is finalised, neither party can make future financial claims against the other. This provides peace of mind and protects future earnings or inheritances.
A clean break may be suitable where both parties are financially independent or where financial support is being dealt with through a lump sum or capital division. It can be part of a negotiated settlement or ordered by the court. It is worth noting that, without a court order, even if you agree not to claim anything further, the door remains open for one party to apply for financial provision in the future.
Therefore, it is essential not just to come to an agreement but to formalise it through a consent order approved by the court. Without this, verbal agreements or informal arrangements offer little legal protection.
Ongoing disclosure and revisiting arrangements
Financial planning in second marriages isn’t static. Circumstances change—children grow up, pensions mature, or one spouse may become ill or stop working. It is important to keep financial agreements, wills, etc, under review. Re-visiting these arrangements every few years, or after significant life events, ensures that they continue to reflect your needs and intentions.
Transparency is also essential. Courts expect full and frank disclosure in all financial proceedings. This includes income, savings, debts, business interests, and pensions. Any attempt to hide assets or withhold information can result in an order being overturned or penalised with cost orders.
Contact an expert family lawyer to discuss your situation today!