Not all newly-weds live happily ever after
Short Marriages and Divorce
Not all newly weds live happily ever after
For a whole variety of reasons the marriage may falter and the parties go their separate ways within a relatively short space of time. Sometimes, this may be because the marriage was as a result of a whirlwind romance, culminating in a beautiful wedding day, but soon after the realities of married life present themselves. Other times, marriage may follow a long period of co-habitation but for one reason or another, soon after swapping nuptials, the husband and wife want to go their separate ways. But what effect does a short marriage have on how assets are divided in the divorce process? The family law team at Cooke Painter solicitors are here to help.
A Wide Discretion
As will be appreciated, the courts have a wide discretion when assessing who gets what in divorce proceedings. Above, we have given two examples – one involving a long co-habitation pre-marriage, the other concerning a whirlwind romance, the courts are likely to view these very differently when looking at dividing assets. Of course, it becomes even more complex if children are involved.
However, returning to length of marriage specifically, what should be noted is that under s.25 of the Matrimonial Causes Act, the court is asked to have specific regard to the length of the marriage, as one of the factors to take into account. It won’t always be the factor but it will always be one of the factors.
Rule of Thumb
As a rule of thumb, assuming an imbalanced financial position when the parties get married, the shorter the marriage, the less likely the courts are to ‘equalise’ that imbalance when the parties split. As an example, in quite an old case called Foster and Foster (2003), the court decided that the parties should retain what they brought to the marriage, but should divide the ‘fruit’ of the marriage equally. Let’s use a worked example, if the husband, had and retained a bachelor pad, but the wife, received and retained a decent inheritance prior to the marriage, if during marriage they buy an investment property together and rent it out, the capital benefit (assuming a buoyant market) and the residual rent would be shared equally but each would retain what they brought the table originally. Makes sense doesn’t it?
Has Anything Changed?
Not really. Some newspapers and some lawyers got very excited recently when a new case of Sharp v Sharp (2017) was decided in the Court of Appeal. But rest assured, nothing has really changed. Sharp was a curious, unusual case. Both parties earned well, about £100k a year prior to the marriage but the wife received huge bonuses during the marriage. The parties had co-habited for a couple of years and then were married for about 4 years before the marriage broke down. The available pot to be divided was a little over £5m, including two properties, both paid for by wife.
The first court decided that the matrimonial assets should be split approximately 50/50, the wife appealed. The Court of Appeal agreed with the wife and reduced the husband’s share to about 35/40 %. So a slight adjustment to the usual 50/50 division of the ‘fruits’ of the marriage principle mentioned above.
However, in reality, this was an unusual case, where the assets far outstripped the needs of the parties. The marriage wasn’t ‘shotgun’ short but was still relatively junior in the grand scheme of things and therefore it isn’t unsurprising that the Court of Appeal gave itself a little wiggle room when dividing the matrimonial assets. If the marriage was even a little longer it is doubtful whether the Court of Appeal would have been prepared to depart from the 50/50 principle.
On a slight tangent, it is a pity that the parties needed to revert to the courts to settle their differences when a well drafted pre-nuptial agreement could have catered for such an eventuality. That being said, when savouring the romance of choosing venue, favours and the bubbles to be consumed at the wedding it’s understandable why the harsh practicalities of a pre-nuptial agreement may not be at the forefront of the couple’s minds.