Settlements In Short Marriages

A Marriage is a Marriage — Even If It’s Short and Childless

When deciding who gets what in a divorce, the court strives to achieve fairness, which in most cases starts and ends with needs.

The first consideration for the court will always be the welfare of any children. After that, the court will look at several factors, in no particular order, to decide what is fair. These are known as the “s25 factors” under the Matrimonial Causes Act 1973. They include the financial resources of the parties, their financial needs, ages of the parties, the standard of living they enjoyed during the marriage, and the contributions they made to the marriage, among other things.

Sharing was articulated by Lord Nicholls in the case of White v White [2000] – he emphasised the need to avoid discrimination in favour of the income provider and against the home-maker. Later cases confirmed that in the majority of cases the assets accumulated during the marriage would be shared equally.

Marriage length is one of the factors that the court takes into consideration. To most people, this seems fair. If you ask anyone on the street, they will probably say that a short marriage should not result in a 50-50 split of the family’s assets in the same way that a long-term marriage would, especially if there are no children involved.

However, the legal approach to this is more complicated.

The recent case of E v L [2021] EWFC 60 illustrates how the court views this particular issue.

What is a short marriage?

There isn’t a legal definition of short marriage, but there are benchmarks. In 2022, the median duration of marriages that ended in divorce was 12.9 years for opposite-sex couples in England and Wales. Therefore, anything below five or six years may be a good yardstick.

However, it’s important to note that the clock frequently doesn’t start from the beginning of the marriage. The court will consider any period of cohabitation before marriage. This means that a couple who lived together for several years before getting married are likely to be treated as having been in a longer relationship than just the length of their legal marriage.

Do different principles apply to short marriages?

Before the case of E v L, the leading case on financial settlements in short marriages was Sharp v Sharp. Mr and Mrs Sharp had been in a relationship for seven-and-a-half years, and married for six of those years, when they decided to divorce. They had no children together, and were both earning around £100,000 per year when they started their relationship. The wife then entered a period of unparalleled professional success, receiving bonuses in excess of £10 million.

The couple owned two properties together, but all their other assets were held separately.

Deciding that the equal sharing principle should apply, the first instance Judge awarded Mr Sharp 50% of the total matrimonial assets. Mrs Sharp appealed the decision. She argued that she earned her wealth under her own steam, without her husband’s help, and that a genuinely short, dual career, childless marriage, where few of the finances had been pooled, should justify a relaxation of the sharing principle.

The Court of Appeal agreed. They scaled down Mr Sharp’s award to a sum that met his needs and would allow him to manage the home he was retaining as part of the divorce settlement.

E v L — a reality check for couples in short marriages

In E v L, the court took a different view. In this case, the husband was a successful music production manager and the wife was a homemaker. The couple met in 2015, got engaged in 2016, married in 2017, and divorced in 2019. The husband provided financial support to his wife from the time they started a relationship.

During the financial remedy proceedings, the wife sought a lump sum equal to half the matrimonial assets, which she calculated at £5.5 million. The husband wanted to pay a far lesser amount. Following Sharp v Sharp and on the basis that the marriage was short and childless, he argued that £600,000 would be enough to meet his ex-wife’s needs.

The judge, Mr Justice Mostyn, rejected the husband’s argument and awarded the wife a little over £1.5 million on a clean-break basis, which compared to half of the assets the couple had built up during the marriage. He gave the following reasons for his decision:

• On the couple’s childlessness – Mr Justice Mostyn signalled his distaste at the idea of a court judging the quality of a marriage based on the fact that a child was not born during it. He could not see why having children or not having children would make any difference to the application of the equal sharing principle and said it would be discriminatory to make such a distinction.
• On the lack of marriage length – The Judge saw no logic in focusing on whether the couple’s assets were accrued over a long time or a short time. There inevitably will be fewer assets accrued in a two-year marriage than a marriage which spans 20 years, but what is accrued during a marriage should be shared equally regardless of the marriage’s duration.
• Departures from the equal sharing principle will be extremely rare – Mr Justice Mostyn acknowledged that there would be instances where a short marriage would lend itself to an unequal sharing of the matrimonial pot, but those instances would be “as rare as a white leopard.” Sharp v Sharp is a good example of this rare exception where both partners were “financially active and independently so,” where the finances were kept separate and one party generated all of the non-family wealth. However, those criteria did not apply to the facts of this case.

What are the implications for short marriages?

For couples who have been married for a short time, there are three main takeaways from this Judgment:

• Not having children will not automatically reduce the share of assets either party takes away from a marriage.
• The length of a marriage alone does not impact the sharing principle. While much will depend on the specific circumstances of your case, it is likely the wealth that has been accrued in your limited time together will be shared equally.
• Providing that sharing the matrimonial ‘pot’ meets needs, then even in a short marriage equal sharing can apply, a marriage with features that justify departing from the equal sharing looking like; both parties working, no children, a huge disparity of financial contribution.

If E v L highlights anything, it’s that a pre-nuptial agreement may be the best tool for couples who wish to have greater control over their financial arrangements in case of a divorce. Get good legal advice from the outset, as what you may think is a fair division of money may not be seen as such by the courts.

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