Think you’ve had a short marriage? Think again

4th March ‘19

One of the factors that the Court must have regard to when exercising its powers to make financial orders on divorce is the ‘duration of the marriage’. In cases where the marriage has been extremely short, the Court may order no financial provision at all; whereas, after a lengthy marriage, the starting position will be to divide everything equally.

This is an approach that I’m sure most people would agree with, but inevitably it is not always that simple. You might assume that a marriage lasting just a few years would be treated as a short marriage, but that may not necessary be the case if the parties have lived together before tying the knot.

It is now very common for couples to live together for many years before deciding to take the plunge and get married. In those cases where the cohabitation has transitioned seamlessly into marriage, the Court will treat the entire period as counting towards the duration of the marriage.

It the case of GW v RW {2003] EWHC 611 (Fam) the judge stated:

I cannot imagine anyone nowadays seriously stigmatising pre-marital cohabitation as “living in sin” or lacking the quality of emotional commitment assumed in marriage. Thus in my judgment where a relationship moves seamlessly from cohabitation into marriage without any major alteration in the way the couple live, it is unreal and artificial to treat the periods differently. On the other hand, if it is found that the premarital cohabitation was on the basis of a trial period to see if there is any basis for later marriage then I would be of the view that it would not be right to include it as part of the “duration of marriage”.

A marriage lasting just a few years that is preceded by 10 years of seamless cohabitation would therefore be treated as a long marriage. This can have a significant impact on the financial orders made, as not only will the Court start from a position of equality between the parties, but the property and wealth accrued during the 10 years of cohabitation will also be treated as forming part of the marital pot to be shared between them.

The duration of the marriage is just one of many factors to which the Court must have regard. The Court is also required to give first consideration to the needs of any child of the marriage and also to take into account all the circumstances of the case. Therefore, in most cases, the duration of the marriage is unlikely to be a determinative factor in the Court’s decision-making process, particularly if there are insufficient assets to meet the parties’ needs.

If you require advice regarding divorce or separation, please contact Naheed Taj – [email protected] 

This paper is intended to be a brief note for clients and other interested parties. The information is believed to be correct at the date of publication but should not be relied upon as a substitute for professional advice. Please speak to a member of our team.

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