When assisting our clients to reach a financial settlement on divorce, one of the questions we are often asked is: “will the length of my marriage affect my divorce settlement?”
From a legal perspective, the answer is that it will. There are a number of matters which the court must have regard to when considering a financial settlement and Section 25 (2) (d) of the Matrimonial Causes Act 1973 specifically states that “the age of each party and the duration of the marriage” must be considered by the court.
However, ‘duration’ can be tricky to quantify and there is no formal definition. It often means different things to different people and the court has wide discretion when looking at the facts of each case. This post looks the court’s general approach to short and long-term marriages and the broad effect of each on the capital in a divorce settlement and, we trust, provide an answer to the question “will the length of my marriage affect my divorce settlement?”
What is a short term marriage?
In the most general terms, while there is no definition, a short term marriage could be considered to be a marriage that has lasted less than 5 years.
If that is the case, the starting point is likely to be an equal split of the finances and assets accrued during the marriage itself, with any assets accrued before the marriage remaining untouched, subject to both parties’ needs being met.
On the other hand, the longer a marriage has lasted, the more likely it becomes that the court’s approach will be that all of the couple’s assets should be divided equally. This applies even if the majority of those assets were in place before the couple married. This means that even if one party began the marriage bringing enormous wealth with them and their spouse entered the marriage with no assets, their combined net worth could be split equally.
Irrespective of how long the marriage has lasted, if there are children or step-children involved, they will be the court’s first consideration when deciding on a financial settlement order to ensure their wellbeing is protected.
If there are no children involved, the approach may be to work out what the couple will need to do in order to return them to the financial position they were in before they married.
What is a long term marriage?
Based on what we say above and existing case law, anything over 6 years could potentially persuade the court to look for an alternative to a straight 50/50 split of the matrimonial assets.
The factors they would take into consideration include the fairest outcome for each party given their financial and personal circumstances and the requirements of any dependent children.
Statistically speaking, it is much more likely that children will be involved in a long term marriage.
It follows that in the majority of cases, the primary carer for the children will need to secure a larger share of the matrimonial assets, at least while the children remain dependent. The primary carer will often retain the matrimonial home as part of the financial settlement (with the other party agreeing to provide mortgage and maintenance payments). This is so the children enjoy continuity of care and minimum disruption.
While this blog is designed to provide you with a rough overview, the reality is of course that every divorce is different depending on your circumstances. If you are thinking about a divorce and would like to ask us any initial questions please email me at [email protected] or call me on 020 8866 1820.