The long and short of it – how does a short marriage affect division of assets upon divorce?

Section 25 of the Matrimonial Causes Act requires the court to consider the length of a marriage when deciding how matrimonial property and finances should be divided.

In an age where shorter marriages have become increasingly common, how does a short marriage affect the division of assets? Moreover, does a short marriage justify a departure from the “equality” that was propounded in, White v White and Miller v Miller; McFarlane v McFarlane.

What constitutes a short marriage?
There is no definitive answer to this. Whilst the court has historically perceived a short marriage to be 5 years or less, in the landmark case on short marriages; Sharp v Sharp, the court deemed a marriage of 6 years including a prior cohabitation of 18 months to be a short marriage.

Indeed, divorcing spouses should note the now widely accepted view that financial contributions to the relationship will be considered from the date the parties began living together (GW v RW (Financial Provision – Department from Equality)) and not merely from the date of marriage.

Likewise, the court take a similarly pragmatic approach on when the marriage ended. This means focusing on financial contributions up to the date of separation, as opposed to the date on which the decree absolute is pronounced and the legal relationship finally dissolved.

Impact on the division of assets
In Miller v Miller; McFarlane v McFarlane the court developed the sharing principle. This dictated that in the vast majority of marriages fairness dictates assets should be divided equally between the parties. This “equality” should then be adjusted according to the parties’ reasonable needs.

In Sharp v Sharp the court considered the Miller v Miller; McFarlane v McFarlane judgement and found it made provision for a departure from equality when a series of narrow but distinct factors are present. These are:

• Short marriage
• No children
• Dual incomes
• Separated finances

This judgment is augmented by the court’s decision in H v H (financial provision) which determined it may be appropriate in short marriage cases for assets acquired before the relationship to be ringfenced to the asset holder and excluded from the matrimonial ‘pot’.

In essence, when the above factors are present it is open to a wealthier spouse to argue an equal distribution would not be fair. They have a more persuasive claim to retain the wealth they bought into the relationship because (i) it was not treated as a truly shared resource and (ii) there should be fewer reasonable needs to address upon separation.

A note of warning
Whilst Sharp v Sharp and H v H may be encouraging to some, the court has been emphatic in stating the retention of personal wealth should not come at the expense of meeting a spouse’s reasonable needs. In FF v KF, despite a marriage of less than 2 years the court found it was right for the wife to receive an award of £4.5 million in order to meet her immediate capital need (housing etc) and future income needs.

More recently, and perhaps with an eye on changing expectations around childbearing, the court has taken issue with the ‘no children’ factor identified in Sharp v Sharp. In E v L the court found it would be discriminatory for the court to come to a different conclusion based on whether or not the parties have children. Instead, the court stipulated the sharing principle should normally be applied to childless marriages too.  

For more information

As with many aspects of family law, the division of finances following a short marriage will be dealt with by close scrutiny of the facts of the case. For questions in respect of the distribution of assets and other family law matters, please contact Tom Gregory.

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