When it comes to financial settlements in divorce proceedings, the Court will consider many factors that will ultimately influence the decision on who gets what from the ‘matrimonial pot’. One of these variables is the length of the marriage. So a marriage begins with a wedding ceremony, right? Not according to the Family Courts…
Recently we had a new client approach us to assist him with a divorce. In our initial phone call, he explained he had only been married for 18 months, and then he added as an afterthought, that he and his wife had lived together for 15 years before getting married. This dramatically changed the legal advice we gave him, as the Court doesn’t regard a marriage ceremony as the start of the marriage. The key date is when a couple started unbroken cohabitation which led into marriage.
When does the Court think a marriage begins?
Any time spent living together as a couple before the marriage will be counted by the Court towards the total length of the marriage, provided that there has been a seamless transition from cohabitation to marriage.
Evidence to determine when the period of pre-marital cohabitation started includes buying a house together or signing a joint tenancy agreement for rented accommodation. So, if a couple lived together continuously for 10 years, then got married and filed for divorce after 3 years, the length of the marriage is actually 13 years in the eyes of the Court, not 3 years.
How does the length of a marriage affect financial settlements in divorce?
As a general rule, the Court usually considers a marriage to be short if it lasts less than 5 years. A marriage lasting between 5 and 10 years is usually considered a medium length marriage. Anything above 10 years is normally considered a long marriage.
There isn’t a specific formula that directly correlates marriage length to financial settlements as the Court will consider the length alongside all the Section 25 factors. For example, in a short childless marriage, the Court is more likely to consider arguments about ‘ring fencing’ pre-marital assets and individual contributions. If assets were owned solely by one party before the marriage, they are less likely to be split on a strict 50/50 basis, and it is more likely that the party that brought the asset into the marriage will retain it, or at least a greater share of it (provided that it is not required to meet the parties’ needs).
A ‘clean break settlement’ is also more likely to be deemed appropriate where the length of marriage is short. But if children are a feature of a short marriage, such arguments are likely to hold less weight as the children’s needs being met are the first consideration.
In a longer marriage, the Court will consider that there are typically more intertwined financial assets, shared property and joint responsibilities which can impact the division of finances on divorce. e.g. in a marriage of over 10 years, it may well be more difficult to persuade the Court that an asset isn’t a shared matrimonial asset. The division is more likely to be equal, or very close to it, whether or not the parties’ wealth has all come from one party.
Case law has repeatedly shown that in longer relationships, the Courts will try to give a higher award to the financially weaker spouse to enable them to be financially secure for the rest of their lifetime and to ensure that their needs are met.
So, in ongoing changes in social norms, where it is more common for many couples to cohabit before getting married the relevant question will be ‘When did you start living together?’ as opposed to ‘When did you get married?’.
What does the Court consider in divorce settlements?
If there are dependent children their needs will always be the Court’s first consideration in divorce settlements. The Matrimonial Causes Act 1973 sets out the other factors that the Court must consider when dividing assets between divorcing parties. These factors are known as the Section 25 factors, which are:
- Each party’s age and the duration of the marriage
- The parties’ individual income and earning capacity
- Their assets and financial resources
- The financial needs and responsibilities of the parties now and in the foreseeable future
- The contributions which each party has made to the marriage both in terms of financial contribution and in terms of contribution to looking after the home or family
- The standard of living enjoyed before the relationship broke down
- Any physical or mental disability of the parties
- The conduct of the parties but only if that conduct is so serious that it would be unfair to disregard it
How we can help
Ultimately, the Court has a wide discretion when making the final financial order and will be guided in its decision by the overarching goal of fairness. This means the Court will weigh such factors against one another to reach a settlement it considers fair in the context of all the circumstances of the marriage.
If it is difficult to determine a clearly defined start date of pre-marital cohabitation, we will be able to advise you should you wish to commence divorce proceedings.
We can also advise on prenuptial agreements which can help protect assets before and after marriage. Although pre-nuptial agreements are not strictly enforceable in England and Wales, if a marriage breaks down, the Court will consider any valid pre-nuptial agreement when determining how to distribute the assets.
In our role as Divorce & Family Law solicitors, we are committed to helping you resolve financial settlements through alternative methods to try and avoid the Court deciding matters for you, and we will explore these options with you before making a Court application. However, it is important that you understand the principles that will be applied to financial settlements in divorce cases, whether or not the Court is making the final decision.
If you would like any advice on any area of Divorce & Family Law, including financial settlements and children matters, then please contact:
- Julia Drury on 0118 975 6622 (Lower Earley office)
- Richard Rodway on 01491 570 900 (Henley-on-Thames office)
You can also email us confidentially at office@thpsolicitors.co.uk