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Short Marriages … “A marriage is a marriage”?

Date:9 SEP 2021

The recent case of E v L[1] has once again brought to the fore short marriages and their treatment within financial remedy cases.

Mr. Justice Mostyn heard this matter over 4 days and his judgment provides some useful commentary on short childless marriages. The consideration of the length of a marriage is a statutory one as per s.25(2)(d) Matrimonial Causes Act 1973.

Sharp and Sharp

Short marriages were fairly recently in the spotlight following the judgment in Sharp v Sharp[2]. The duration of the parties’ marriage in this case was 6 years, including an initial 18-month cohabitation period. There were no children, and the parties were, at the time of proceedings, in their early 40’s. The parties had two jointly owned properties, with the remainder of their assets being owned individually. The total matrimonial assets in this case were assessed at £5.45m. The first instance decision of Sir Peter Singer awarded the husband 50% of the total matrimonial assets.

Sir Peter Singer, when considering whether the sharing principle applies, concluded that “it is in my judgment consistent with current principle that the matrimonial acquest, the value of the assets and savings built up during the marriage, irrespective of the very different proportions in which the parties contributed them, should be subject to the equal sharing principle”[3].

The wife appealed and asked the court to determine to what extent a departure from equality could be justified in a short marriage. It was the wife’s case that ‘two related, but distinct, features’ […] were marked out by the House of Lords in Miller for a different approach to that of simple equal division. The first is a short, dual career, childless marriage. The second is that the parties have structured their finances in a particular way. The Appellant’s case is that both features are present here to a sufficient degree to justify a relaxation of the sharing principle.[4]

[1] [2021] EWFC 60

[2] [2017] EWCA Civ 408

[3] Para 54 JS v RS [2015] EWHC 2921 (Fam)

[4] Para 53 Sharp v Sharp

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Lord Justice McFarlane in concluding makes the point that given the length of marriage is a factor that Parliament have identified “is simply a recognition that fairness is likely to dictate a different approach depending on the length of a marriage”[1]. The final determination of Lord Justice McFarlane was that “the combination of potentially relevant factors (short marriage, no children, dual incomes and separate finances) is sufficient to justify a departure from the equal sharing principle in order to achieve overall fairness between these parties”[2].

The Husband’s claim having been assessed at £2.75m at first instance (the total assets at first instance totalled £6.9m) was, after appeal, limited to £2m. This figure was reached taking into account the following;

  • £1.3m being a 50% share of the aggregate value of the parties’ two joint properties
  • £700,000 to reflect the following factors
  •            The standard of living enjoyed during the marriage
  •            The need for a modest capital fund to live in the property the husband was to retain; and
  •            Some shares in the assets held by the Wife

E v L

We then arrive at E v L, this case appeared before Mr. Justice Mostyn following an unsuccessful private FDR. The Husband and Wife were 66 and 61 respectively and although there was some debate about whether or not there was any pre-marital cohabitation, the length of the parties’ marriage as at the date of the trial was five years. The wife in this case, whilst she had engaged in a number of different careers, was now a housewife. The husband was a successful production manager for live music events who had an interest in six businesses.

The difference in the parties’ positions was labelled ‘extraordinary’[3] by Mr Justice Mostyn. The Wife’s position was that she should receive half of the marital acquest, which would have equated to £5.5million. The Husband’s position was that he should pay to the Wife the sum of £600,000. This was argued on the basis that “because of the short duration of this childless marriage, this is not a case for equal sharing of the marital acquest but one where the wife should be confined to very conservatively assessed needs”[4].

Mr. Justice Mostyn first dealt with the fact that this couple did not have any children and how this should affect the principle of equal sharing. Mr. Justice Mostyn concluded that it was extremely dangerous for a court to evaluate the quality of a marriage and “when the court is undertaking the application of a sharing principle it should start and almost invariably finish with the proposition that a marriage is a marriage”[5].

Dealing specifically with whether the marriage had produced children Mr. Justice Mostyn indicated that “for the court to start asking why there are no children, and whether this denotes a lesser extent of commitment to the relationship, is to make windows into people’s souls, and should be avoided at all costs”[6].

Consideration was then given to the length of the marriage and following a useful summary of the relevant case law, Mr. Justice Mostyn concludes fairly firmly that “there is absolutely no logical reason to draw a distinction between an accrual over a short period and an accrual over a long period. As Lord Nicholls pointed out [Miller[7]], the statutory factor of the duration of the marriage will be reflected in the nature of things by the fact that in a short marriage the accrual will almost invariably be less than in a longer marriage[8].

It is Mr. Justice Mostyn’s proposition that “a case where there can be a legitimate non-discriminatory unequal sharing of matrimonial property earned in a short marriage will be as rare as a white leopard”[9].

(Mostyn J emphasised the word ‘earned’ to draw a distinction between money generated during a marriage and an asset brought into a marriage which has been ‘matrimonialised’ e.g., a property which has been used as a family home as the law recognises the possibility of unequal sharing of that type of asset.)

The final outcome was a payment due to the wife of £1,515,000 on the basis that the acquest that accrued during the period between January 2016 to June 2021 should be divided equally.

Where does this leave us?

The case of E v L provides clear guidance that the presence of children within a marriage is relevant only to needs rather than the sharing principle. There should be no differentiation between the commitment of a marriage with or without children.

In addition, there is no logical reason to distinguish between an accrual over a short period and an accrual over a longer period.

This is another case which highlights the importance of considering a nuptial agreement which would have confirmed the parties’ intentions prior to the breakdown of their relationship.

The question of whether there should be unequal sharing of a marital acquest in a short marriage, for now, seems answered. The wait for that ‘white leopard’ case continues. 

[1] Para 56 Sharp v Sharp

[2] Para 114 Sharp v Sharp

[3] Para 15 E v L

[4] Para 17 E v L

[5] Para 28 E v L

[6] Para 29 E v L

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

[8] Para 43 E v L

[9] Para 45 E v L