If you are considering remarrying, there are several legal implications you should be aware of before taking the plunge. We discuss these below, read on for more information.
If you are considering remarrying, there are several legal implications you should be aware of before taking the plunge. We discuss these below, read on for more information.
If you feel you need the best representation for a family law matter, contact specialist family solicitor Mark Heptinstall of Slater Heelis Solicitors. He is recognised as a ‘Leading Individual’ in The Legal 500 and ranked in Chambers UK, and is described as having “the amazing ability to bring calm into troubled waters”.
With an increasing number of individuals using online divorces or dealing with the process themselves, it is becoming common to leave matrimonial finances unresolved. Many people are therefore unaware that after divorcing, financial claims are not automatically dismissed, meaning they could be caught in the “remarriage trap”.
What is the remarriage trap and how can I avoid it?
If you remarry without having obtained a financial order addressing the division of matrimonial assets from your former marriage, you will be barred from making an application for financial provision. This includes property adjustment orders, applications for a lump sum, spousal maintenance, or pension attachment orders. The only application that can be made under the remarriage trap, is a pension sharing order. The consequences of falling foul of this rule could result in you losing the right to claim any assets from your former spouse that you may have been entitled to receive on divorce.
If remarriage is on the cards, the easiest way to avoid the remarriage trap is to make sure all financial matters in relation to your previous marriage have been finalised before remarrying. This can be done by either obtaining an order by consent or by making an application for financial provision prior to getting remarried.
Will remarrying affect spousal maintenance?
If you are receiving spousal maintenance under a maintenance order, this will end if you remarry. You will need to take this into account before going ahead with the wedding and make sure you can manage financially without this additional income.
If you are paying spousal maintenance, you should think about whether you can continue making these payments after remarrying. If your income is likely to be affected by the marriage, your ability to make maintenance payments may be impaired. In any case, you would need to apply to court to have the spousal maintenance order varied or discharged, and cannot simply stop making payments because you believe you are unable to afford it.
Will a prenuptial agreement protect my assets if I remarry?
A prenup can be tailored to your specific circumstances which can encompass a wide range of matters. It usually covers issues such as how assets will be divided if you divorce and how debt will be dealt with. It can also be used to protect assets for your children and safeguard inherited money, property, or savings that you built up before the marriage.
Although a prenuptial agreement is not legally binding, so long as it has been properly drafted, both parties have entered into full financial disclosure to each other, and taken independent legal advice before signing, the court will generally follow its terms when making an order. This is provided the circumstances have not drastically changed since signing and the terms of the agreement are fair.
How is my will affected if I remarry?
If you remarry or enter into a civil partnership, it will automatically cancel any existing will you may have. This means that you should make a new will that reflects your change in circumstances. If you subsequently die without having made a will, then your estate will be distributed according to the rules of intestacy, which may result in your assets going to those you would not necessarily have included if you had made a will.
For example, the following individuals have no right to inherit when someone dies without making a will:
- Unmarried partners
- Gay partners not in a civil partnership
- Relations by marriage
- Close friends
- Carers
What happens if I don’t make a new will when I remarry?
When the estate is valued over £322,000 (at the time of writing), without a will, the deceased’s spouse will inherit the following:
- All the personal property and belongings of the deceased; and
- The first £322,000 of the estate, and
- Half of the remaining estate
Any surviving children, grandchildren, or great grandchildren of the deceased will share the remainder half of the estate over £322,000. Essentially, then, children will only inherit under the rules of intestacy if the deceased’s estate is worth more than £322,000. Otherwise, they will receive nothing.
If there are no surviving children, grandchildren, or great grandchildren, the spouse will inherit all the personal property of the deceased together with the whole of the estate with interest from the date of death.
Blending families, parental responsibility, and adoption after remarrying
Becoming a step-parent can be a troublesome transition, whether or not you already have children of your own. Blending families can create some challenging dynamics and raise issues that need to be worked through as everyone becomes accustomed to the new circumstances. Problems include:
- Difficulties managing child arrangements with new ex-partners
- Co-parenting with an ex
- Dealing with child related issues and decisions
- Step-parent adoption and parental responsibility
Step-parents often develop a close and strong bond with their spouse’s children. However, they have no legal standing when it comes to making decisions about the child’s upbringing or medical care; this even includes signing consent forms for school. But in specific circumstances, step-parents can acquire parental responsibility. This can happen when:
- A court makes a child arrangements order that the child will live with the step-parent, either on their own or with another person. Although this type of order is extremely rare in practice.
- The court makes a parental responsibility order in favour of the step parent
- Through signing a step parent parental responsibility agreement to which all those with parental responsibility consent
- The step-parent adopts the child putting them in the same position as a birth parent
If a step-parent wishes to adopt a step child, they must first inform their local authority at least three months before applying to the court for an adoption order. The child must also have lived with the step parent for at least six months. The process is similar to an assessment through an adoption agency and is used to help the court determine whether the step parent can adopt the child. The local authority will appoint a social worker who provides a report focusing on:
- The step-parent and their partner
- The child(ren)
- The other birth parent
If granted, the adoption order gives the step parent parental responsibility and takes it away from the child’s absent birth parent.
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The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.
