Case No. EWFC-75

Counsel for the husband advanced a submission before the commencement of this hearing seeking to suggest that the wife’s financial remedy claims were barred because of her remarriage. The submission went as follows: ‘The W has not applied for a financial remedy order against H prior to her remarriage and therefore financial obligations terminate. The court cannot order a transfer of property to a party who has remarried and who had not made an application for such an order prior to that remarriage. They must make their own application (which may be a cross-application) before they remarry if they wish to seek an order in their favour.’ Reference was made to section 28(3) of The Matrimonial causes Act 1973.34.That argument under section 28(3) had not been raised at the hearing before me on 12th April. An opportunity to raise the argument had been given by the order of DDJ Lucy Reed on 6th February 2019 [B18] but had not been taken up.35.On receipt of the argument I called for production of the wife’s petition. It was emailed to me by the wife’s solicitor. It is dated 31st March 2017. It contains a full prayer for all forms of financial orders (each box is ticked). By reason of Rule 9.4 of The Family Procedure Rules 2010 and Jackson v Jackson [1973] 2 All ER 395 that prayer is sufficient to avoid the provisions of section 28(3) of the 1973 Act being a bar to the financial remedy claims. The wife should have issued a Form A, signalling her intention to continue with her claims but there is no bar against them and the procedure has continued over the past three years in the clear knowledge and understanding that she is pursuing her capital claims under that Act. 36.