“The elephant trap of premature remarriage”: the dangers of ignoring section 28(3) of the MCA 1973

Many of us will have experience of section 28 of the Matrimonial Causes Act 1973 (‘MCA 1973’). Regular reference is made to section 28(1A) which allows the court to prohibit any application under section 31 to extend the term of a periodical payments order. We all regularly use section 28(1), which provides that the remarriage of a receiving party will bring to an end their right to receive periodical payments. But section 28(3), a mere 5 lines long, is not often cited, despite making a tangible difference to the cases to which it applies.

The section relates to financial provision proceedings after one of the parties has remarried or formed a civil partnership. It of necessity therefore applies where Decree Absolute has been granted in respect of Relationship 1 but the finances were not dealt with, and one party has embarked on Relationship 2 and formalised it. With the likes of Wyatt v. Vince [2016] EWHC 1368 (Fam) establishing that there is no limit on when a financial claim can be brought, this section may increase in importance.

Section 28(3) states as follows:

“If after the grant of an order or decree 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 of that order or decree, for a financial provision order in his or her favour, or for a property adjustment order, against the other party to that marriage.”

In summary, therefore, the party in Relationship 2 cannot apply for periodical payments, a lump sum, pension attachment or a property adjustment order in their favour from their spouse from Relationship 1.

The difficulties that can arise are obvious. Imagine a husband who allows the wife to remain in the family home with the children after separation but no formal agreement is entered into. He subsequently remarries. Under section 28(3) he is debarred from seeking a transfer of the property or a lump sum in respect of his share.

Family lawyers must be alive to the difficulties caused by a subsequent marriage. If a party makes an application for financial relief prior to remarrying, their position is protected. However all bases should be covered: in Wilson v. Wilson [1976] 3 All ER 464 it was held that making an application for periodical payments in the petition did not allow a claim for a lump sum to be brought after the remarriage. Similarly, in Jenkins v. Hargood (formerly Jenkins) [1978] 3 All ER 1001 an indication in the acknowledgment of service to the petition of an intention to claim ancillary relief was not sufficient to constitute an ‘application’.

Furthermore, a party cannot simply rely on the other party to Relationship 1 making an application. It has been held that the court cannot order a transfer of property to a husband who has remarried and who had not made an application for such an order prior to that remarriage: Robin v. Robin [1983] 4 FLR 632. He must make his own application (which may be a cross-application) before he remarries if he wishes to seek an order in his favour.

It would therefore be prudent to either finalise financial matters relating to Relationship 1 before remarriage or make an application before remarriage, with all relevant claims ticked.

For reasons that are not immediately obvious, the section does leave open a claim for a pension sharing order. Another potential route would be a claim under the Trusts of Land and Appointment of Trustees Act 1996 in relation to jointly-owned property, although the Court of Appeal in Tee v. Tee [1999] 2 FLR 613 roundly criticised the use of any statute other than the MCA 1973 in dealing with marital property. However, if the other party to Relationship 1 firmly refuses to issue an application under MCA 1973 then the remarried party may have no other option. Alternatively the remarried party may apply for relief for the benefit of a child without falling foul of section 28(3).

By way of ending, the case of E v. E [2008] 1 FLR 220 is a perfect example of the “brutal outcome” that can follow what Singer J called the “elephant trap of premature remarriage”. The wife petitioned for divorce and included a claim for financial provision in the same document. The parties reached a negotiated settlement in which the wife – who held the bulk of the wealth, which was acquired outside of the marriage – was to pay the husband a lump sum of £250,000. The agreement was stated to take effect from the date of it being approved by the court. The husband’s solicitors filed a Form A, but sadly this was not until 3 days after the husband remarried in Bali. The husband nonetheless asked the court to approve the consent order, but Singer J declined. He stated that the facts fell squarely within section 28(3) and the court therefore had no jurisdiction to make the order. He considered whether a Form A issued by the wife would suffice, but given that the only order was for her to pay money to the husband he decided that she could not apply for such an order against herself. The consent order was not approved and the wife was not required to pay to the husband any money. A sobering tale indeed.