What is a “short” marriage?
1. Sometimes a client will say in conference “my marriage is not a long one – surely I don’t need to share everything, do I”? This is not an easy question to answer, there are several variables which will inform what answer should be given, here is a concise exposition of the principles and recent case law to assist in answering this question.
Children – E v L [2021] EWFC 60
2. It was previously thought that if a marriage is short and childless then it is less likely that the court would embark upon the “sharing” principle. This is plainly wrong. The existence/conception of children cannot be a determinative factor – not least because it creates an obvious risk of creating a two-tier system and an inequity to non-parents – this should be avoided at all costs.
3. In E v L [2021] EWFC 60, Mostyn J heard evidence over 4 days, the court was asked to consider whether a short and childless marriage would have any material effect on the division of assets. Mostyn J emphatically rejected the suggestion that a childless marriage should receive different treatment in law. In short, childlessness should be banished from any consideration there should be a departure from the application of the equal sharing principles in an application for financial remedies following divorce. The existence of children impacts upon the needs principle but not the sharing principle.
4. The key judicial comments from the judgment are as follows:
Para. 27 – “The reason we do not attempt an evaluation of the quality or the attributes of a marriage is that to do so risks subconscious discrimination”.
Para. 29 – “In my judgment 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.
Para 34. – “In my judgment this factor [childlessness] should be banished from any consideration of whether there should be a departure from the application of the equal sharing principle.
5. Therefore, the existence or non-existence of children should have no impact on whether or not the sharing principle applies, however, the existence of the children will undoubtedly have an impact on the needs principle.
Length – Miller, McFarlane
6. There is no statutory definition of a “short marriage” – therefore we need to resort to the case law. As always it is better to focus on the most recent reported cases where possible. In general – the courts consider a marriage of approximately five years or less as a “short marriage”. A marriage that consists of twenty years or more is often categorised as a “long marriage”. Anything that falls between can be referred to as a “medium length” marriage – of course the reported case law will have small deviations from these figures.
7. A significant case in the field of short marriages remains Miller v Miller, McFarlane v MacFarlane. The House of Lords heard two sets of appeals, and the Lords held:
“…in the case of a short marriage fairness might well require that the claimant should not be entitled to a share of the other’s non-matrimonial property, that (per Lord Nicholls) matrimonial property was property acquired during the marriage otherwise than by inheritance or gift … Matrimonial property should be regarded as the family assets, i.e. assets which were acquired for the use and benefit of the whole family … then the duration of the marriage might justify a departure from the yardstick of equality of division.
8. The shorter the length of the actual marriage – the less likely it is that a claimant will be able to invoke the sharing principle.
Prior cohabitation – GW v RW [2003]
9. When the marriage is a short one, a claimant will often point to pre-marital cohabitation as a part and parcel of the relationship and suggest that the cohabitation cannot be ignored.
10. The origin of the cohabitation jurisprudence lies in the decision of Deputy High Court Judge Nicholas Mostyn QC [as he was then] in GW v RW [2003] EWHC 611, para 33 where he said obiter:
“Thus in my judgment where a relationship moves seamlessly from cohabitation to marriage without any major alternation in the way the couple live, it is unreal and artificial to treat the periods differently”.
11. These dicta have stood the test of time and are oft-cited in reported cases.
12. In the matter of VV v VV [2022] EWFC 41, Mr Justice Peel held that if there is seamless cohabitation prior to the marriage the impact on the sharing principle is that the matrimonial assets will be shared equally between the parties unless there is a good reason they should not be. In relation to the needs – it was recognised that this marriage is short, and the husband had a far greater earning capacity and capital resources. The wife was provided funds to redeem her mortgage, pay her legal fees and three year’s worth of maintenance.
13. This case illuminates the sharing principle, and highlights that the court will not rigidly follow the principle. When there is a period of cohabitation it does not necessarily mean that the sharing principle will be necessarily invoked.
Conclusion:
14. The principles can be summarised as follows:
a. Childlessness or the existence of children will have no impact on the sharing principle.
b. The shorter the length of the marriage – the more difficult it will become to share assets, both non-matrimonial or matrimonial.
c. Prior cohabitation will be taken into account if there is a “seamless” transition between cohabitation and marriage, the court will retain some flexibility as to whether or not the sharing principle is invoked.
Aysha Miah
33 Bedford Row
31st July 2024