Does having a short marriage make a difference to the financial settlement?
Hear from our family solicitors on the effect having a short marriage can have on financial settlements.
17 August 2023
A question often considered by Family Lawyers is whether the length of marriage impacts on the financial settlement.
As part of the several factors that the Court takes into account, consideration is given to the duration of the relationship in Section 25 of the Matrimonial Causes Act 1973.
The court usually takes the view that a short marriage is considered to be one of five years or less.
The principle of evenly sharing finances acquired during the marriage, like the home they lived in, is usually used in shorter marriages without dependent children, and when both parties have their own careers. This can be adjusted if one person has made different types of contributions, to ensure fairness overall.
However, an automatic 50/50 division may not necessarily be applied in other cases where there are dependent children, as the needs of each spouse, their earning capacity and financial contribution to the marriage will be considered.
When looking at the division of the assets on divorce, one of the principles that is looked at can be the length of the marriage – including any pre-marital cohabitation.
The first step when dealing with short marriage cases is to ascertain the parties' financial positions in consideration of the 'Section 25 factors' under the Matrimonial Causes Act 1973. These includes resources, financial needs, standard of living, ages, the length of the marriage, any disabilities, each party's contributions, and any benefit either party will lose from divorcing.
The court must have regard to 'all the circumstances of the case', which gives a Judge a wide discretion when making an order.
The case law with respect to short marriages includes the cases of Miller v Miller and McFarlane and McFarlane where the Court established the features that could justify making an order. This included:
- Compensation for relationship-generated disadvantage;
- Sharing the fruits of the marital partnership;
What happens when a short marriage involves children?
If there are no children from the marriage then, generally speaking, each party can expect to leave with whatever they personally contributed. In essence leaving the marriage with what they walked in with.
However, if there are children, then the priority of the court will always be to meet the needs of the children. In these cases, consideration is given not only to the duration of the relationship/marriage, but the factors set out in Section 25 of the Matrimonial Causes Act 1973, which are seen all as equally important:
- The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity, any increase, which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
- The financial needs, obligations and responsibilities which each party has or is likely to have in the foreseeable future;
- The standard of living enjoyed by the family before the breakdown of the marriage;
- The age of each party to the marriage and the duration of the marriage;
- Any physical or mental disability of either of the parties;
- The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
- The conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
- In the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
How will the court deal with property?
Short marriage divorces tend to focus on a division of any matrimonial joint assets and less on provision for maintenance in the future.
The court can, however, as in the cases of Miller & McFarlane take into account, any sacrifices made for the marriage. For example, leaving an established career.
The court can also consider factors such as if one party brought into the marriage significantly more assets or money and contributed more money to the purchase of a property.
Usually, assets acquired prior to the marriage will be retained, or returned to the spouse who originally had them, and assets accrued during the marriage will be divided more or less equally when the parties divorce.
In short marriage divorces, couples need to be aware of the assets they had before marriage and how many assets have been acquired during the time together.
“Non-matrimonial property” is not usually shared between a divorcing couple unless it has been placed into joint names or changed into a different asset, for example a property sold and then a joint home purchased.
It can be the case that parties can protect their own pensions, but the family home, if in joint names can be shared and divided according to needs. If there is little money involved, couples would be well advised to settle and avoid costly and protracted litigation.
A consideration to a couple entering a marriage, with established assets, should always be to enter into a prenuptial agreement to seek to protect their assets as much as possible, in the event of divorce.