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Short, but not necessarily sweet

Andrew Newbury of Pannone & Partners considers short marriages and divorce

picture of andrew newbury

Andrew Newbury, Partner, Pannone & Partners

When is a short marriage not a short marriage? These days it would seem to be where there has been pre-marriage cohabitation, a child born to the marriage or even where there has been a badly behaved husband. The purpose of this article is to consider how claims are now being treated following the breakdown of short marriages.

1. The Length of the Marriage
Section 25(2)(d) 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". Aside from the question of why those two specific issues are linked together in the same sub-section, statute is very clear in its wording. We must look at the actual "length of the marriage". A short marriage is therefore a short marriage.

There has however been a change in approach which started with the decision in GW v RW (Financial Provision – Department from Equality) [2003] 2 FLR 108 and which has gathered momentum since that time. The prevailing view is that "where a relationship moves seamlessly from cohabitation to marriage without any major alteration in the way the couple live", it is artificial to treat the periods differently. In essence, the pre-marriage cohabitation is added to the length of the marriage.

The approach has since found favour in other reported decisions including the approach adopted by Mr Justice Coleridge in Co v Co (Ancillary Relief – Pre-marriage Cohabitation) [2004] 1 FLR 1095. Whilst Mr Justice Coleridge did not treat the pre-marriage cohabitation as part of the duration of the marriage, he viewed it as an important non-financial factor which was akin to the duration of the marriage and which could be viewed as contribution or conduct if it was necessary to allocate it under Section 25 Matrimonial Causes Act 1973.

This approach was again supported by Mrs Justice Baron in M v M (Financial Relief – Substantial Earning Capacity) [2004] 2 FLR 236.

It should however be borne in mind that although the courts may now treat the commencement of cohabitation in a settled relationship as the appropriate start date, at the other end of the line courts will look at the date of separation as the true date at the end of the marriage, as opposed to the subsequent pronouncement of decree absolute. That is invariably the case and the approach was again upheld by the court in GW v RW. It is an approach which reflects the reality of the situation.

2. The Reason for the Breakdown of the Marriage
Once the actual length of the marriage has been established, what about the factors surrounding the breakdown of the marriage? A fascinating approach was adopted by Lord Justice Thorpe in G v G (Financial Provision – Separation Agreement) [2004] 1 FLR 1011. After emphasising the width of judicial discretion under Section 25, Lord Justice Thorpe went on to draw a distinction between the position of a wife who is forced to petition for divorce due to the husband's unfeeling misconduct and that of a wife who leaves a marriage capriciously and for her own advantage. At first instance the trial judge had also taken the view that whilst the husband's conduct was not sufficiently appropriate to increase the award to the wife, more importantly it was a significant counter balancing factor against the husband's argument that this was only a short marriage.

Lord Justice Thorpe took the view that the length of the marriage was only one of the factors which the court is required to consider under Section 25 and although the marriage was comparatively short, the wife's contribution was very significant indeed. On appeal the trial judge's award of a Duxbury fund of £240,000 was upheld following on from only a four year marriage.

3. Age of the Parties
The age of the parties can be an important factor in how the courts deal with a wife's claim following on from the breakdown of the marriage. For an older couple, the leading authority still remains S v S [1976] 3 WLR 775. Lord Justice Ormrod emphasised the importance of looking closely at the effect of the marriage, mainly on the wife, but also on the husband. Whilst there is no question of putting her back into the position she was in before the marriage, or of performing any such hypothetical task, they are factors which had to be borne in mind when making an order.

Thought must also be given to how the "yardstick of equality" is relevant in the context of very short marriages. The increasingly common approach, particularly when considering younger couples, is for there to be an equal division of assets built up during the course of the marriage, although with pre-acquired assets being treated differently. Of particular note is the decision in Foster v Foster [2003] 2 FLR 299 in which 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.

4. Spousal Maintenance
Short marriages with children usually prove to be far more difficult for practitioners. The principal issue is often when a wife's claims for spousal maintenance should be terminated. For example, should a young wife with young children after a very short marriage be entitled to a joint lives periodical payments order? On the other side of the coin however, how can her claim for maintenance be dismissed? What of her ongoing commitment to the children and her ability to adjust if that claim to maintenance were terminated?

The leading case remains C v C (Financial Relief – Short Marriage) [1997] 2 FLR 26. In the space of a year, the couple married, had a child and separated. Lord Justice Ward described the case as highly unusual and indeed unique, but still chose to dismiss the husband's appeal of the first instance decision which provided the wife with a significant lump sum, child maintenance, but more importantly, a high level of periodical payments on a joint lives basis. Lord Justice Ward stated that although the marriage was very short, it had profound and continuing consequences for the wife's earning capacity in the short to medium term. Although it was inappropriate in a short marriage case to limit financial support for the wife to a relatively short period, the brevity of the marriage may nevertheless be relevant to the issue of quantum of periodical payments. Lord Justice Ward helpfully set down the appropriate approach as follows:-

(a) The first task is for the court to consider a clean break pursuant to Section 25A(1).

(b) If there is to be no clean break, the court is to decide the amount to be ordered. The duration of the marriage is a factor relevant to the determination of quantum.

(c) If a periodical payments order is made, the court must then consider whether it would be appropriate to impose a term.

(d) Is it appropriate to order periodical payments only for such a term as would be sufficient to enable the recipient to adjust without undue hardship to the termination of financial dependence on the paying party?

(e) What is "appropriate" depends on all the circumstances of the case, including the welfare of any minor child and the Section 25 checklist, one of which is the duration of the marriage. It is not however appropriate simply to say, "this is a short marriage, therefore a term must be imposed".

(f) Financial dependence is evident from the very making of a periodical payments order, although the question is whether, in the light of all the circumstances of the case, the recipient can adjust without undue hardship to the termination and, if so, when. In considering such issues, the court should consider not only the duration of the marriage, but also the need to care for any minor children and the effect that will have on the earning capacity of the recipient. It is highly material to consider any difficulties the recipient may have in entering or re-entering the labour market.

(g) The court cannot form its opinion that a term is appropriate without evidence to support its conclusion. There must be a reasonable expectation that the recipient can and will become self-sufficient. Crystal ball gazing is not sufficient.

(h) The court must also form an opinion not only that the recipient will adjust, but also that she will have adjusted within the term that is fixed. The court may be in a position of such certainty that it can impose a Section 28(1A) bar.

The decision of Lord Justice Ward in C v C must however be considered in the context of recent decisions. The Court of Appeal re-emphasised the importance of Section 25A(1) in McFarlane v McFarlane and Parlour v Parlour [2004] All ER 921. Also of note however are the comments of Mr Justice Wilson in S v B (Ancillary Relief – Costs) [2004] EWHC 2089. Following on from a three year marriage with a three year old child, the wife was awarded a significant capital award as well as a 10 year nominal maintenance order. The husband appealed the order, although ultimately failed as Mr Justice Wilson took the view that the trial judge had properly exercised his decision and had not been plainly wrong. Whilst his comments are obiter, they are noteworthy,

"The nominal order is not appealable: for, although not my preference, it is not plainly wrong. I must accept that a fair number of my colleagues, be they High Court Judges, Circuit Judges or District Judges – would reasonably have exercised their discretion in favour of keeping alive, at least until the child was a teenager, the wife's right to seek to inflate a nominal order for periodical payments to a substantive level. They would regard it as a reasonable precaution against unforeseen developments, taken primarily for the sake of the child. I stress, however, that the circumstances in which it would be apt to vary the order are indeed unlikely to arise: if, for example, the wife fell seriously ill and if, by then, the husband was again a substantial earner, then, yes, there might be a needs-based variation of the order, providing always that the court bore in mind the amount of capital of which, after so short a marriage, the wife had by order relieved the husband".

5. Conclusion
If anything, case law continues to re-emphasise the width of discretion the courts have in applying the Section 25 factors. As circumstances vary so significantly from case to case, it is difficult to ascertain clear and consistent principles. What is clear is that the relevance of each of the Section 25(2) factors varies from case to case, depending upon individual circumstances.