When going through a divorce, you may have questions about how the court will decide how to divide your assets. This question comes up often, but particularly for divorcing couples who may have been married for a shorter period.
The court takes a view of categorising marriages based on the length of time the parties have been together. A short marriage is generally (though not always) considered to be one of around five years or less. There are also categorisations for medium-term and long marriages.
The Section 25 factors of the Matrimonial Causes Act 1973
In all divorces, the court uses what are commonly referred to as ‘s.25 factors’ to determine the fairness of division of the matrimonial pot. The s.25 factors come from Section 25 of the Matrimonial Causes Act 1973, and is a list of relevant considerations that help the court to understand the key facts of the parties’ marriage, and how best to divide the matrimonial pot that meets the parties’ needs following divorce. These factors include age of the parties, health, the needs of any minor children, earning capacity, etc.
The parties’ ‘needs’ following a divorce is an elastic concept, as division of the matrimonial pot is very much subject to the facts and circumstances of each case. However, there is case law (decisions by judges) that help guide family lawyers and their clients in determining fairness.
Is pre-marriage cohabitation taken into account?
When considering the length of a marriage, most people would assume that this would be from the date of marriage until the date of separation. However, the case of GW v RW determined that if parties do live together (cohabit) for a length of time and then marry, this can be considered a seamless transition into marriage and therefore taken into account into the length of the marriage.
For example, if a couple cohabit for two years, marry and then separate two years after marriage, the court can consider that this is a marriage of a total of four years, taking into account the period of cohabitation. The marriage is still categorised as a short marriage but does take into account that the parties were living together for a period prior to marriage, but as a committed couple.
Sharing the ‘matrimonial pot’
Another key question is how the court will divide the matrimonial pot on divorce, and whether a marriage being short will affect this. This can be because sometimes a spouse has brought in pre-marital accrued assets, or non-matrimonial assets.
The case of White v White determined that there should always be the starting point of equal division, known as the ‘yardstick of equality’. This case also determined that there should not be a bias in favour of the breadwinner and against the home-maker or child carer in the marriage.
With short marriages, case law has shown that the court still favours and uses the White approach of equal division but may seek to return non-matrimonial assets to the spouse that brought them into the marriage.
The court has determined that a short marriage is no less of a partnership than a long marriage; it merely had a shorter duration. Accordingly, any assets accrued during the course of the marriage are considered matrimonial and subject to the starting point of equal division in divorce.
There can sometimes be a departure from equality, but this must be justified.
Children and their impact in a short marriage
The needs of any minor children are the first consideration in the court when dividing the matrimonial pot. The court has a significant discretion in determining what is fair when dividing assets between a divorcing couple, and even more so when there are minor children to take into consideration.
In the case of C v C, the couple in question had married, had a child and separated within the space of nine and a half months. The wife in this case was awarded a significant lump sum payment and child maintenance. The wife was awarded a high level of periodical payments on a joint lives’ basis.
The husband appealed this decision, but the court dismissed the appeal. The court determined that although the marriage was short, the impact of having a child meant that there were profound and continuing consequences for the wife’s earning capacity in the short to medium term.
A similar decision was reached in B v B, where the parties had been married for a year and had a child before separating. The court determined that the wife would have to effectively ‘contribute’ to the marriage for the next two decades as a result of bringing up the parties’ child. This would mean that her earning capacity would suffer as a result.
However, as above, the court has significant discretion to decide what is a fair way to divide assets.
In summary, it is considered that the same principles are applied by the court no matter the length of the marriage. The court will always use the Section 25 factors and consider the needs of the parties. The court will also take into account contributions to the marriage and any non-matrimonial assets when considering if there should be a departure from equality.
Understanding your situation
If you have any questions about family matters, and you are unsure of where to begin, our specialist family team offers an initial consultation for up to an hour to help advise you on your next steps, and what Kew Law can do for you.
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