UK: Financial Entitlement In Short Marriages

Last Updated: 1 April 2019
Article by Hannah McCrindle

This article was authored by Hannah McCrindle.

When a marriage has been short, contributions are more likely to be relevant in the context of determining the division of assets and determining what is and what is not matrimonial property. The court's duty to consider clean break orders under S.25A(1) of the Matrimonial Causes Act 1973 will also be of significance. It is worth noting that where the marriage is short, but the parties have had children, the court will adopt a different approach to the situation where the marriage was short but there are no children.

Sharp v Sharp [2017] EWCA Civ 408

The parties were married for six years and had no children. The parties had co-habited for 18 months prior to getting married. The marriage was described at first instance as "not so desperately short from cohabitation to separation as some, but still by no means lengthy". In the first instance, the court considered that the matrimonial assets should be subject to the equal sharing principle. This was despite the fact that the parties contributed in very different proportions. The Court of Appeal reduced the husband's award. The court concluded that "a fringe of cases may lie outside the equal sharing principle" but only where factors such as length of marriage, lack of children, careers and/or separate finances justify such a departure.

The wife's appeal was allowed on the following grounds:

1.The automatic application of the equal sharing principle unless the parties had entered into a prenuptial agreement was "unsustainable and not supported by any authority".

2.The majority in Miller held that the law should entertain the possibility for departure from equal sharing where there are unilateral assets in a short marriage, dual-income case.

3.The obiter comments in Charman, preferring the approach of Lord Nicholls, was not a determinative statement of the law.

4.The manner in which the parties arranged their finances was more than sufficient to establish that the wife maintained her capital separately, in a manner compatible with that described by Baroness Hale in Miller.

FF v KF [2017] EWHC 1093 (Fam)

The parties were married less than two years, but there were substantial assets available. The husband appealed an order that awarded the wife GBP 4.5 million. The Court of Appeal held that the judge at first instance was right to take into account the wife's immediate capital needs and her future quotidian need. This was well within his discretion. He said that the assessment of needs is a relative concept that was not capped or limited, it is a discretionary exercise that takes into account the wealth, length of marriage, age, health and the standard of living of the applicant.

R v R (financial remedies: needs and practicalities) [2011] EWHC 3093 (Fam)

The parties were married seven years and the parties had two children (one from a previous marriage). This was the third marriage for both parties. The judge took into account the shortness of the marriage. He held that the wife's periodical payments were to be limited to a set period of time pending receipt of a deferred lump sum.

H v H (financial provision) [1993] 2 FLR 335

This was a short marriage. Singer J voiced the opinion that if the court was concerned with assets derived from a pre-marital acquisition or gift, then the rules of fairness would mean that these assets should be excluded from the dividing exercise.

McCartney v Mills-McCartney [2008] EWHC 401 (Fam)

This was a short marriage, however the husband's assets increased by some GBP 41.5 million over the course of the marriage. There was one child. The wife's award was largely based on her needs and Bennett J stated at para 311:

"In my judgment, in this case the needs of the wife (generously interpreted) are not simply one of the factors in the case but are a factor of magnetic importance. In a case where the vast bulk of the husband's enormous fortune was made not only before their marriage but also indeed before the wife and husband even met; where the "marital acquest" (if such there has been) is of a very small amount compared to the total assets; where the compensation principle is not in any way engaged; where the marriage is short and where the standard of living lasted only so long as the marriage; where the wife is now and will be very comfortably housed; and where [...] (the daughter)'s needs are fully assured, surely fairness requires that the wife's needs (generously interpreted) are the dominant factor in the S.25 exercise. Any other radically different way of looking at this case would, in my judgment, be manifestly unfair."

Miller v Miller; McFarlane v McFarlane [2006] UKHL 24

The House of Lords held that the equal sharing principle applies to short marriages. The judge has the discretion to decide what would be a fair division of the whole of the assets. He must take into account the parties' respective financial needs, if there is a need for compensation, and whether and indeed to what extent it would be appropriate to depart from equality.

Foster v Foster [2003] EWCA Civ 565

The parties were married for three years and had no children. Both were employed, and each had made equal contributions to the marriage. It was held that the assets acquired during the marriage should be divided equally and that there was no good reason to depart from the equal sharing principle in that case. Where the wife had contributed more in terms of pre-marital assets, she was allowed to retain them as her own. As such, the wife was award 61% of the assets of the marriage as she had contributed more at the outset. Those assets built up during the course of the marriage were effectively divided equally.

C v C [1997] 2 FLR 26 (a pre-White) decision.

Described as having "highly unusual facts". A significant issue in the case was the health issues of the parties' child and that the husband's behaviour was such that security was required as to the wife's financial provision. It was notable in the case that the court considered that the parties' marriage had caused "long-term prejudice to the wife's earning capacity and financial affairs".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. For any further queries or follow up please contact Expatriate Law at info@expatriatelaw.com.

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