Family Law Series Part 3: How does the length of your marriage impact the financial split on divorce?
As examined in Part 1 of this Series, one of the factors 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 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 necessarily be the case if the parties have lived together before ‘tying the knot’.
In 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. Plus, 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 pre-marital 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 be included 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 a 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(ren) 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.