When looking at a financial division upon divorce, the general principle is to establish what is fair and reasonable in each case, with regard to all the circumstances. The sharing principle is the starting point for all cases, a 50/50 division of matrimonial assets. However this is may be departed from when the parties or the children’s needs establish it would be fair to do so. The needs principle is applied to cases where the focus of the division of assets is to ensure that both parties’ financial needs, namely housing needs and income needs, can be met moving forward. It then falls that it would be unfair to split assets equally as the financially weaker party would be left disadvantaged.
Guidance on and the circumstances that may be taken into account in determining what is fair and reasonable can be found in section 25 Matrimonial Causes Act 1973. It is here that we find a checklist of relevant factors that need to be considered in the balancing act of all the circumstances of the case.
Length of marriage
One of these factors is the length/duration of marriage. Understandably a claim that arises after 20 years of marriage or civil partnership will be far greater than a claim after a marriage of 2 years. Different principles may apply depending on whether the marriage was short, medium or long marriage which are approximately established as 1-5 years, 5-10 years, and 10 years plus respectively. However if children have been born in a short marriage, the needs of those children may mean that the length of the marriage has less weight.
In a short marriage without children factors such as contributions and pre-acquired assets are more likely to be relevant in establishing what is fair and reasonable. Furthermore the court’s duty to consider a clean break at the earliest opportunity is a lot easier to contemplate for marriages of shorter periods where assets brought into the marriage are less likely to have been co-mingled. As the length of marriage increases, these factors aren’t always as prevalent in the weighing of all the circumstances. While they should still be considered, after a long marriage, who brought what into the marriage tends to hold far less importance and other factors such as income needs, earning capacity, and the financial responsibilities of the parties tend to hold more weight. Generally the longer the marriage, the stronger the principle of sharing and equality, as assets are more likely to be viewed as shared or intermingled during the course of a marriage.
Cohabitation
The length of the marriage is not, however, from the date that you signed your marriage certificate. Case law sets out that cohabitation that moves ‘seamlessly’ into marriage is added to the period of time described as ‘length of marriage’. The idea is that the length of marriage should reflect when the couple entered into a partnership of mutual support granting each other the same rights and obligations as those imposed by marriage. However, this only applies if the cohabitation is followed by a marriage ceremony – those who only cohabit do not have the same rights.
At Rayden Solicitors, we can advise on the claims available after marriage, and on the impact that the length of marriage will have on the division of assets, so please do not hesitate to contact us for advice.
