It may be the society that I keep, but one of the wearisome aspects of being a family specialist is being called upon, when off duty, to justify the present state of the law relating to ancillary relief (not that they ever call it that), and it is the size of awards following a short marriage that is more often than not the topic of choice of the testy (usually male) dinner party companion. This article attempts to do that.
As we know the duration of the marriage is one of the s.25 criteria in the 1973 legislation, specifically S.25 (d) where it is grouped with the ages of each of the parties to the marriage. For nearly thirty years I would have given much the same explanation as to the Courts approach to a short marriage. Since 2001 however, that explanation would have had to have changed repeatedly, and only now, with Miller1 and McCartney2 do we seem to have arrived at a settled position again.
The pre-White3 approach was demonstrated by Ormrod LJ in S v S4 involving a two year marriage of parties in their fifties both of whom had been married before. The wife was the weaker financially, and the approach taken was to consider the effect of the marriage particularly on her. On the facts of that case, Ormrod LJ rejected the hypothetical task of fully restoring her to the position she had had before the marriage, but this was thrust of his award; it was the needs that she was no longer able to meet as a consequence of the marriage that were its main focus, and it was a return to the standard of pre-marital housing that he attempted to achieve.
In H v H5 the parties were younger, the financial impact of the marriage on either insignificant – no children were involved, and their employment prospects unaffected by it. Balcombe LJ stated that the Court's approach in such a case should be:
"..to allow for a short period of periodical payments to allow the party...in the weaker financial position... to adjust to the situation, and thereafter to achieve the wholly desirable result of a clean break"
The legislative amendments of 1984 reinforced this approach. They removed the direction to replicate the standard of living in the marriage (not that this had ever detained the Court for long in these cases) and introduced S.25A to encourage the clean break wherever possible.
In Attar v Attar (No 2)6 the facts were much closer to H v H although it was S v S that Booth J mainly cited. The parties, again both young, had met and married as employees of Saudi Arabian airlines for whom the wife worked as a stewardess, which paid her £15,000 pa but which she left by agreement. The marriage lasted six months, containing only seven weeks cohabitation, and there were no children. The husband was extremely wealthy by the standard of the times while the wife was unemployed had limited capital and no home. Again the Court's approach was retrospective: the wife received a lump sum equating to two years pre-marital salary to enable her to "..rehabilitate herself as best she can...and to find a place in society for herself". There was no specific allowance to meet her housing need as such.
Hedges v Hedges7 involved a 4½-year childless marriage of a couple in their 40's. The Court sought only to restore the wife's "frugal" pre-marital income position by a periodical payments order for a term of 18 months only, and contained no element allowing her a mortgage and house of her own
C v C8 involved another very short marriage (9½ months) but there was an asthmatic child to show for it. Ward LJ approved the extract from Balcombe LJ's judgment given in H v H (quoted above), but both H v H and Attar were distinguished on account of the child and the resulting "profound and continuing consequences" on the mother's earning capacity and he left undisturbed a significant lump sum for housing and whole of life periodical payments (for which the judgment is better known).
Accordingly, until 2001 the Court's approach was retrospective and rehabilitative, the standard of living of the claimant prior to the marriage being the principal guide. An older wife with less time or earning capacity might expect to have that standard restored (if finances allowed); a younger wife, with a continuing capacity to fend for herself, might expect a limited period of assistance before being expected to do so.
The House of Lord's judgment in White in 2001 and those that succeeded it brought about a wholly different approach to claims for ancillary relief, and this has had its effect on short marriage cases too; indeed the pot was so well churned that the jurisprudence can only be said to have begun to settle down over the past couple of years. In the new era of entitlement, what was to be the effect of a yardstick of equality, or the equating of home and money making, on a short marriage?
John Eekelaar considered these issues in his article "Asset distribution on divorce – the durational element" (Law Quarterly Review 2001) which appeared very shortly after the judgment in White. He suggested that "parties who share their lives together earn a share in one another's assets relative to the length of time they have shared their lives". In his view, the primary social task of a marriage being the raising of children, a full equal share might be achieved in the time it would take for the first child to become independent, which he put at 20 years of actual cohabitation. On that basis the rate at which the spouses earn a share in each other's property would be 2.5 per cent per year.
This article was cited in GW v RW9 and although Nicholas Mostyn QC (in his judicial capacity) was not attracted by such a formulaic approach he accepted the proposition that entitlement "must represent not only the respective parties respective contributions but also an accrual over time". Although this case did not involve a short marriage of the type considered here, this approach would have affected such cases if it survived.
But it did not ( I consider the House of Lords judgment in Miller - which rejected the approach - in some detail below), and it was the judgment in Foster v Foster10, given shortly after GW v RW which has much the greater long term significance to the issue of the short marriage. This involved a childless marriage of 4 years between parties in their early thirties during which both had worked throughout, the wife earning considerably more than the husband. She was therefore able to make greater contributions towards the successful property development which they undertook together (albeit under his principal direction) in the short time they were together. She wanted them back. The Court of Appeal restored the District Judge's original order which had, as one of its aims, the traditional approach of returning the parties to the position they were in before the marriage. To this end she returned to each what they had individually brought into the marriage, together with their contributions made post separation. However, the profits made during the marriage she divided equally on the basis that each had contributed what they could. The Court of Appeal approved this approach, holding (adopting the principles in White) that each should be held to have made an equal contribution to assets accumulated in the joint enterprise, which should therefore be shared equally unless there were other considerations telling against this. Inequality of investment was not a reason to depart from equality of outcome.
It is principally the House of Lords judgment in Miller v Miller which has brought us to a fairly settled position, although in so doing it had to scotch what was a further new approach to short marriages that Singer J introduced at first instance, and which the Court of Appeal embellished. The relevant facts are well known: the parties were married for 2 years 9 months after an engagement of a year and had no children. The husband's assets when they married were £16.7m; when they separated were £17m plus whatever value should be attributed to 200,000 New Star shares, which he received during the marriage itself. Although the value of this holding was not known at the trial, the midpoint between the estimates was £15-£17m.
There were two new departures: first the judge's view that the wife was entitled to raise the issue of her husband's conduct, not in the context of S.25(2)g (which she had not pleaded), but as a counterweight to the duration issue, he having (so Singer J considered) triggered the separation rather than the other way around. Secondly, the judge found that, despite its short duration, the marriage had given W the reasonable expectation that her life again as a single woman should reflect the standard of living she had enjoyed while it lasted. Both these factors were approved by the Court of Appeal, somewhat to the concern of the profession, as they appeared to be both expanding the role of conduct, and judicially reintroducing the objective of replicating marital standards of living that had been legislatively excised in 1984. Both were rejected by the House of Lords, although so far as standard of living was concerned, Baroness Hale went almost as far as the judge, as we shall see below.
In the judgments the House of Lords identified the overriding need in any marriage, long or short, to achieve fairness, and that this had three requirements: meeting financial need generated by the relationship, compensation for disadvantage created by it, and finally the sharing of its fruits. Critical parts of the judgments were directed at how the fruits of the marital partnership (the matrimonial acquest) were to be ascertained, in relation to which they differed slightly. In Lord Nichol's view matrimonial property was everything acquired during the marriage except through gift or inheritance (including the matrimonial home whatever its source), and non-matrimonial property was everything else. Baroness Hale took a more limited view of matrimonial property (with which Lord Mance agreed); she considered that just as the source of pre-marital or inherited property was relevant in limiting the assets against which a claim could be made, source was also relevant (especially in very big money cases) if business or investment assets had been generated during the marriage solely through the efforts and acumen of one party, particularly if the other party had not shared the business risks, and where that party's domestic contribution had played no part. Mr Miller's New Star shares were an obvious example.
In a long marriage such distinctions become blurred, just as they will with inherited or pre-marital property, particularly where such assets are used for the benefit of the family as whole (Lord Denning's view in Wachtel11 was approved), but in a short marriage they are much clearer. It should be noted that this is distinct from the stellar contribution argument which applies to, and affects, the division of the matrimonial acquest.
Singer J awarded Mrs Miller £5m, which was left undisturbed by both the higher courts being within the ambit of discretion, although both suggested that it was at the upper end of it.
How, therefore, are the three requirements of fairness to be employed in short marriages. Frequently, the discussion will never get further than the first, which is the need generated by the marriage. In such cases the purpose of the award has an old fashioned feel to it, being (per Baroness Hale) "to enable a gentle transition ...to the standard she could expect as a self sufficient woman". Where possible, account should be taken of the standard of living enjoyed during the marriage (paragraphs 138 and 158) and this removes some of the retrospective character of the pre-White cases. Subject to this, where the financial circumstances are such that the post-White doctrines of compensation and sharing are not engaged, such cases remain relevant. Accordingly, a young wife from a short childless marriage with an earning capacity, in anything other than an exceptional case, should expect a term order only, perhaps with a S.28(1A) direction debarring extension, and wherever possible such payments would be capitalised. The same cases suggest that a term order would be less likely for an older wife in the same circumstances where independence was always likely to be beyond her; however, the older judgments could be pretty rigorous in their expectations, and anyone wishing to argue to the contrary will find ammunition readily available amongst them (see for instance Robertson12, Leadbeater13, Hedges14). The pre-White cases also remain authorities for other vehicles available to address need, such as settlements of property and Mesher Orders which Baroness Hale approved in Miller.
The second requirement is compensation for significant prospective economic disparity generated by the relationship. Such awards have not been plentiful even in long marriages, seemingly limited to where a lucrative career has been sacrificed to the family (à la Mrs MacFarlane). That being the case it is most unlikely to arise in a short marriage. The ongoing contribution made by the mother of a young child has always been capable of recognition even in pre-White days – see C v C above.
The final requirement is sharing. The principle, based on the concept of a marriage as a partnership, is that, however short the marriage, each is entitled to an equal share of those assets which are matrimonial property (unless there is reason to the contrary – eg a stellar contribution). Accordingly, the critical issue, and therefore the likely focus of dispute, is what is to be included within this category. In principle, and unless needs dictate otherwise (see below) all pre-marital property, gifts and inheritance, business assets created in isolation and without any contribution from the other party, and assets generated after separation, should be excluded, together with passive economic growth in the same (per Nicholas Mostyn QC in Rossi v Rossi15).
How do these three requirements fit together? Assuming the funds exist, the irreducible minimum is the applicant's need. Accordingly, the court is ready and able to invade assets which it would otherwise consider non-matrimonial, if fairness so required. Similarly, at the other end of the financial spectrum, if, having met the applicants need, further sums were required to satisfy the doctrines of compensation or sharing, then these would be paid on top. It follows that an amount required to meet need can be subsumed in a higher figure suggested by the requirements of compensation and sharing, but will not be reduced if these factors do not feature (or do so to a lesser extent).
McCartney v McCartney is an example of this in operation. The parties were engaged in July 2001, married in 2002, and separated in 2006 having had a daughter in 2003. The judge found that the husband's assets at the time of separation, business and non-business combined, were £387m, and that they had increased over the course of the marriage by £41.5m. All of this increase related to non-business assets (the business assets having actually declined over the period by £20m). Of the increase, £20.1m had been passive and accordingly the matrimonial acquest to which any doctrine of sharing might apply (the wife's claim for compensation having been rejected) was £21.4m, of which half was £10.7m. The judge did not need to consider if this was liable to reduction due to H's stellar contribution because he was to find that her need, on a capitalised basis, amounted to £16.5m and therefore subsumed it. W already had property and cash from him of a little over £7.8m, which the judge found it reasonable for her to keep, bringing her total award to £24.3m.
Lord Nichols in Miller recognised the instinctive feeling that a claimant after a short marriage ought to have a lesser claim on the other's assets than might be the case had the marriage lasted much longer. Whether the means that he and his colleagues have provided to achieve this satisfies my testy dinner companion is perhaps another matter. He should not lose heart entirely; while Crossley v Crossley16 was principally concerned with the overriding objective and a pre-nuptial agreement, the facts that the marriage was short and childless was an essential part of the background. It followed that there was unlikely to be any marital acquest and as W had no need she could not readily meet herself both the judge and the Court of Appeal concluded that there it was unlikely that there would be any award at all.
1  UKHL 24
2  EWHC 401
3  1 AER 43 HL
4  Fam 127
5  2 FLR 392
6  FLR 653
7  1 FLR 196
8  2 FLR 96
9  2 FLR 108
10  2 FLR 299
11  Fam 72
12  4 FLR 387
13  FLR 789
14  1 FLR 196
15  EWHC 1482 (Fam)
16  EWCA 1491
First published published in Family Law journal in June 2008
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