How does the court approach short marriages?
Monday, July 3, 2017
A marriage of less than five years is generally considered by the family courts to be a short marriage. If you are exiting a short marriage, do be aware that if you were together before you married, the court may combine this period plus the duration of the marriage when considering the case, ie add up both time periods.
In short marriages, the court decision may seek to reflect the needs of the parties over and above the principle of sharing or dividing assets.That said, the best way to understand how the court approaches short marriages is to revert to the precedents set by past cases, so let’s review some of those:
In the famous case of Miller v Miller, a House of Lords case in 2006, there was a childless marriage of two-and-three-quarter years. Lord Nichols indicated that in short, childless marriages the emphasis may be upon meeting the Wife’s “minimal future needs only”. In this case the Husband was ordered to pay a lump sum of £5m out of an asset pool of £30m – so one-sixth of the total monies available. The reason for the decision centres on three points:
The Wife had “a legitimate expectation” arising out of the marriage that she could live to a significantly better standard of living for the rest of her life.
The marriage breakdown was not her fault, therefore the duration of the marriage was not a discounting factor.
The Husband appealed the first-instance decision, but the Court of Appeal largely agreed with the first-instance judge. The Husband appealed once more, going to the House of Lords, who dismissed the Appeal, albeit for different reasons. The outcome was the same.
Any property acquired during the marriage as a result of joint efforts, or property originating from outside or before the marriage is usually an important issue in the court’s decision in terms of how to dispute assets between the parties.
In the case of MD v D, 2009, 1FLR, the Wife was 52 years old. She was a recently qualified barrister and married her 70-year-old Husband, who was a retired Circuit Judge. In this short marriage case of only four-and-a-half years to separation, the total asset pot excluding pensions was £895,000 and the Wife received 41% of the assets and a three-year Periodical Payments Order, ie maintenance.
In the case of Foster v Foster in 2003, this was a three-year childless marriage with both parties in their thirties. Both were interested in property development and had undertaken joint projects using the capital they both brought into the marriage. The District Judge decided to divide the ‘partnership profits’ equally but otherwise let both parties keep their own stakes. That led to 61% for the Wife and 39% for the Husband.
However, on Appeal the Circuit Judge reduced the Husband’s shares to 30%. At the Court of Appeal, Lady Justice Hale said: “It cannot be said that the District Judge’s approach was unfair, but there are many ways to approach it.”
So different logic may lead to the same result and, even in short marriages, the situation is complex and needs careful analysis as to whether the division between the parties is analysed on the basis of sharing or needs.