When formulating financial settlements for divorce cases, the courts have wide discretion to redistribute income and assets in light of the circumstances. One of the factors under section 25 of the Matrimonial Causes Act 1973, which the court must have regard to when determining the division of assets, is the duration of the marriage. It has been acknowledged that a short marriage ‘will affect the quantum of the financial fruits of the partnership’. The length of a marriage is therefore a central consideration; the parties to a longer marriage are likely to have contributed more towards it. 

What is a short marriage? 

It is generally accepted that a short marriage is one that has lasted for five years or less. Although there is no qualifying period of years for a long marriage, usually a marriage of ten years or over will be regarded as such. It is now normal, following the case of GW v RW [2003], for any period of pre-marital cohabitation to be added to the length of the marriage. The prevailing view is that the commencement of cohabitation in a settled relationship can be treated as the appropriate start date. 

What is the approach of the court to short marriages?

Originally from 1973 onwards (the date of the Matrimonial Causes Act which still governs divorce law) the approach of the courts to short marriages was very straightforward. The less economically sound party was be awarded enough to enable him/ her to get back on his/ her feet.

However following the landmark case of White v White [2001] any award had to be checked against the yardstick of equality. However this did not lead to an equal division of assets in short marriage cases. The approach of the courts tended to be to put the parties back in the position they were in prior to the marriage. This approach was demonstrated in the case of Foster v Foster [2003] where the parties were returned to their positions before the marriage and the fruits of the marriage were divided equally. This resulted in W receiving around 60% of the assets as her pre-marital contribution had been far greater.

However following the case of Miller v. Miller [2006] the court’s approach changed again. Mrs Miller famously received £5m after a 2 ¾ year childless marriage about 25% of her husband’s considerable assets. Virtually all family lawyers felt the decision was over generous. In Miller Lord Nicholls states that "in the case of a short marriage, fairness may well require that the claimant should not be entitled to a share of the other’s non-matrimonial property". In essence, it is likely that the court will treat the pre-acquired assets differently, applying the equality principle only to assets that were built up during the course of the marriage. However this may not apply in needs cases. Since the case of Miller a more broad-brush approach has  been taken.

I had to advise two wives shortly after the Miller case that they would have to pay their feckless husbands something. In both the family home had been placed in joint names although the home had been financed totally by the wife in both cases. In each case the wife had to pay their spouse around 25% of equity in the family home. Had the cases been dealt with prior to Miller it might have been that they would have only received a “nuisance payment”.

In another case I dealt with where the marriage was short, and I acted for the father both spouses had similar high earning capacities, however there was a young child with the mother. The court was prepared to ring fence the father’s pre matrimonial assets and pension, so he retained those, the family home was divided equally and a term maintenance order was made in favour of the wife.

Clean break financial settlements

Where a marriage has been short and there are no children, the court may require the couple to undertake a financial clean break order so that neither party to the divorce has any further financial interest in the other’s affairs. Where there are no children spouses are essentially expected to leave the union with whatever they brought to the marriage. However, the court will consider whether there have been sacrifices from either side, such as giving up on a career or a property, and will potentially include more generous provisions for that spouse upon divorce.

Comment

As circumstances vary significantly from case to case, it is difficult to ascertain consistent principles; the outcome will always vary depending on the details of the individual case. Overall, and although the duration of the marriage is a central consideration, it cannot be viewed in isolation, and there may be a series of other relevant factors such as children, contributions and earning potential.

Of course some damage limitation can be carried out if a pre-nuptial agreement can be entered in prior to the marriage. This can ring fence pre-acquired assets and inheritances. Such agreements are not automatically binding but are now given, subject to certain safeguards considerable weight by the courts.