Financial Settlements in Short Marriages: Short but Not Sweet

One of the factors under section 25 Matrimonial Causes Act 1973 which the court must have regard to when redistributing the assets on divorce, is the age of the parties and the duration of the marriage. What is the court’s approach when the marriage has been short?

The first point to consider is what is meant by a ‘short marriage’. Although this is a subjective question, it is generally accepted that a short marriage is one which has lasted for around five years or less. Pre-marriage cohabitation will be added to the length of the marriage following the decision in GW v RW (Financial Provision – Departure from Equality) [2003] FLR 108. However, the duration of the marriage cannot be considered in isolation, and there may be a multitude of other relevant factors such as children, contributions and earning potential. Although the court’s approach to the division of assets in short marriages has evolved in a somewhat piecemeal fashion, there are some solid rules which are worthy of consideration.

The equality principle
The ‘yardstick of equality’ established in White v White, means that the starting point in the division of assets should usually be an equal split, with a departure from equality only taking place where there is a good reason for doing so. But how, if at all, does this operate where the marriage has been short? There may be some short marriages where the equality principle should be fully applied. These could include marriages where the parties contributed more or less equally to the acquisition of the property and to any other joint assets.

However, in many cases, the short duration of the marriage is likely in itself to be a good reason for departure from equality.  The court will look at which assets were built up during the course of the marriage, and apply the yardstick of equality to them. The court will treat the pre-acquired assets differently, and is more likely to return them to whichever party brought them to the marriage. As a general rule, the shorter the marriage, the weaker one party’s claim on another’s extra-marital property:

• In Foster v Foster [2003] 2 FLR 299, the marriage lasted less than three years. The district judge sought to return the parties to more or less the positions they had been in before the marriage. The wife was awarded 61% of the assets as she had contributed more at the outset. The assets which had been accumulated during the course of the marriage were divided equally.
• In Klamer v Klamer [2006] EWCA Civ 690, a marriage which lasted less than five years, the husband was left with “infinitely greater financial security” as he had been the greater financial contributor. The wife’s application to appeal was refused.
• In Miller and McFarlane [2006] 1 FLR 1186 HL the position changed somewhat. The House of Lords made it clear that the old principle of trying to restore each party to the position they were in before the marriage is no longer applicable, and the court must apply all the section 25 factors no matter how short the marriage. However, that does not necessarily mean there must be an equal division of assets. The court must look at which assets were produced during the marriage, and which existed before. As time goes by, the distinction between marital and non-marital assets becomes increasingly blurred.

As Lord Nicholls stated:

“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. The source of the asset may be a good reason for departure from equality. This reflects the instinctive feeling that the parties will generally have less call upon each other on the breakdown of a short marriage”.

The courts have a very wide discretion in applying the section 25 factors, and the outcome will always vary depending on the precise circumstances of the individual case. Needs, especially those of any children, will usually be the court’s first priority.

Kim Beatson is a Partner and Head of Anthony Gold’s Family Law department. For further information email Kim or call 020 7940 4060.  

This article was first published in New Law Journal, “Short but not Sweet”, NLJ 16 December 2011, p 1730.

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