What makes a short marriage?

What constitutes a short marriage can be debated and the interpretation by the courts is often inconsistent. What one judge may view as a short marriage, another may view as medium or long. The broad discretion by the courts on this matter can lead to varying and unpredictable outcomes for splitting couples and their lawyers. 

Regarding short marriages, section 25 of the Matrimonial Causes Act 1973 directs the court to have regard to ‘the age of each party to the marriage and the duration of the marriage’ when assessing the division of assets and ongoing payments in financial remedies proceedings. But the question remains: what constitutes a short marriage, and does a short marriage justify a departure from the ‘equality’ sought by White v White and Miller v Miller?

There is no reference in the 1973 act to ‘short marriages’ or ‘long marriages’, but these terms are often used in a broad sense to categorise cases. It is inappropriate to attempt a precise definition; nor is it helpful to refer to marriage statistics. In practice, a marriage of three years or less can properly be characterised as a ‘short marriage’, while a marriage of 15 years or more can be described as a ‘long marriage’. Clearly there is also a less certain period of categorisation in between.

A number of key cases help shine a light on how the courts can define and interpret a short marriage. In FF v KF [2017] EWHC 1093 (Fam), despite a marriage of less than two years, the court found it was right for the wife to receive an award of £4.25m in order to meet her needs. The husband had assets of more than £37m and on his dismissed appeal, Mr Justice Mostyn stated that ‘the assessment by the judge of the wife’s immediate capital needs, and of her future quotidian need, was well within the discretion vested in him by parliament’. The outcome, while amounting to a significant sum was, however, a relatively small proportion of the husband’s overall wealth.

In Sharp v Sharp [2017] EWCA 408, the six-year marriage (including cohabitation) was said, by Lord Justice McFarlane, to be ‘not so desperately short but not long’. The court considered that the matrimonial assets should be subject to the equal sharing principle. This was despite the fact that the parties contributed to the assets in very different proportions. However, 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 landmark case of White v White, which helped establish that ‘equality should be departed from only if, and to the extent that, there is good reason for doing so’, significantly changed cases where a short marriage could be claimed. In these types of cases there will often be a good reason for departing substantially from equality, especially in respect of non-matrimonial property.

In Miller v Miller [2006] UKHL 24, for example, Lord Nicholls said: ‘A short marriage is no less a partnership of equals than a long marriage. The difference is that a short marriage has been less enduring. In the nature of things this will affect the quantum of the financial fruits of the partnership… In the case of a short marriage, fairness may well require that the claimant should not be entitled to a share of the other’s non-matrimonial property. The source of the asset may be a good reason for departing from equality. This reflects the instinctive feeling that parties will generally have less call upon each other on the breakdown of a short marriage.’

While matrimonial property (that is to say, the product of the parties’ joint endeavours) will normally be shared equally regardless of the length of the marriage, a departure from equality may be appropriate where parties in a short marriage without children, who are both in employment, have elected to maintain separate property to some degree.

However, this is another tricky area as disputes can be complicated. Examples of cases where there can be legitimate and non-discriminatory unequal sharing of matrimonial property earned during a short marriage have been said to be as ‘rare as a white leopard’ (Sharp v Sharp). In cases where assets are more than sufficient to cover the needs of the parties, complex arguments can ensue over what constitutes matrimonial property and what is a fair and proper distribution of the assets. Again, the court has very wide discretion in these matters.

Courts are under a duty (per section 25A(1)) to consider whether a clean break order should be made in all cases regardless of the duration of the union. However, a clean break is often more likely to be deemed appropriate or desirable in a short marriage case.

Ultimately, the issues surrounding short marriages and how this affects the division of assets can bring a number of difficulties, particularly with regard to how long a short marriage actually is, when a relationship started and ended, and the uncertainty regarding the division of matrimonial and non-matrimonial assets and how to define these. Some judges appear to believe the presence of children makes a difference, while others think it is discriminatory to allow the presence of children to affect the approach taken by the courts. It is an issue that will likely continue to be debated in the courts, and one which lawyers should be well aware of.

Kate Van Rol is a barrister at 4PB, London