Those who have only been married a few years might feel that the court’s financial process shouldn’t apply to them in the way that it does to long marriages and those where children are involved. However, the legal approach to this, as shown in recent case law, is not straightforward.

The recent case of E v L [2021] EWFC 60 has provided updated guidance on the treatment of short marriages within financial remedy proceedings.

The ‘equal sharing’ principle established in White v White sought to provide equality between spouses and their roles within the relationship. As a result, the starting point in all cases is that the matrimonial pot should be shared equally unless there is a reason for a departure from this. One such reason for an unequal division is the ‘needs’ principle, which provides that the assets should be divided in such a way as to meet both parties’ housing and other financial needs.

Are the legal principles applied differently in marriages that are short or childless?

Before the recent case of E v L, the leading case on the treatment of finances in short marriages was the Court of Appeal decision in of Sharp v Sharp [2017] EWCA Civ 408, which suggested that in the event of a short and childless marriage, where both spouses have largely been in full-time employment and where only some of their finances have been pooled, fairness may require a departure from the sharing principle, either so as to reduce the financially weaker party’s share or exclude some property from the calculation, subject to both parties’ needs still being met.

Mr Justice Mostyn took a different view on the treatment of short marriages in his decision in the case of E v L. In this case the Husband, aged 66, was a highly successful production manager for live music events and the wife, aged 61, was predominately a homemaker. When the relationship started in 2015 the husband immediately started providing financial support to the wife. The parties later became engaged in 2016, married in 2017 and divorced in 2019.

The Wife was seeking a lump sum of £5.5 million. This was her calculation of half the marital acquest as she considered she had a case for a sharing claim. The husband’s position was that he should pay the wife £600,000 as he maintained that the short, childless marriage, was not a case for equal sharing (in line with the guidance from Sharp v Sharp) and the wife should be confined to a settlement that would meet her very conservatively assessed needs.

Childlessness

Mr Justice Mostyn rejected the husband’s argument that not having children demonstrates “a completely different category of commitment” within a marriage. Mostyn J warned that “for the court to start asking why there are no children, and whether this denotes a lesser extent of commitment to the relationship, is to make windows into people’s souls, and should be avoided at all costs.” He said that “In my judgement this factor should be banished from any consideration of whether there should be a departure from the application of the sharing principle.”

Shortness of the marriage

Whilst the length of the marriage remains one of the statutory factors considered in financial remedy proceedings, when considering the effect of the length of the marriage on the sharing principle within his judgment, Mr Justice Mostyn found “There is absolutely no logical reason to draw a distinction between an accrual over a short period and an accrual over a long period.” His view was that arguments regarding marital acquest (the assets accrued from the start of marriage or cohabitation to the point of the breakdown of the marriage/the conclusion of the financial proceedings), can be made in the same way in a short marriage as in a long marriage. He noted in this context that there will inevitably be less assets accrued in a short marriage than a marriage that spans over 20 years.

Mr Justice Mostyn accepted however, that there will be some rare instances where the short marriage will lend itself to a departure from equality. This could apply in circumstances where there was a genuine dual career family, where the spouses had pooled assets for the benefit of the family but retained separately and solely non-family assets or where both partners are “financially active and independently so”, however this did not apply to the facts of this case.

As a result of these considerations, Mr Justice Mostyn awarded the wife £1,515,000 which compared to half of the assets built up during the marriage.

How does this impact other short marriage cases?

The Court of Appeal’s decision in Sharp v Sharp remains the most senior of the two decisions, but does need to be seen against the context of Mr Justice Mostyn’s decision in E v L. For those contemplating a divorce after a short, childless marriage, this means that they cannot be confident that the court will disregard the sharing principle in their case. It remains possible that a court considering the appropriate financial outcome to their case may decide to divide the assets built up during the marriage equally, bearing in mind Mr Justice Mostyn’s view that there are very few circumstances where having a short marriage will affect the application of the sharing principle. Much will depend on the specific circumstances of a particular case, and so it is all the more important, to take legal advice as to financial matters at the outset of the divorce process.