Ask a family lawyer what constitutes a ‘short’ marriage in divorce terms and these days the answer might be longer than expected!
In the case of Mr and Mrs Miller which went all the way to the House of Lords in 2006, the parties’ two-and-a-bit year marriage unsurprisingly was categorised as a short one. The grey area between ‘short’ and ‘medium’ never seemed to be a particularly wide expanse; ‘anything under five years’ being the commonly-held view of what constituted a short marriage in divorce terms.
The recent decision of the Court of Appeal in the case of Mr and Mrs Sharp has lengthened the piece of string beyond that five-year threshold. The Sharps’ marriage was found to be of six years’ duration (including 18 months’ pre-marital cohabitation). The Judge at first instance – Sir Peter Singer sitting in the High Court – held this to be ‘not so desperately short…as some, but still by no means lengthy’ and the Court of Appeal plainly characterised it as being a short marriage.
If six years is short, what about seven, or eight, or nine…and why the significance of that piece of string in the first place?
In the earlier case of White, in 2001, the House of Lords established what commonly has since become known as the ‘sharing principle’ – or in other words, a 50/50 starting point for the division of marital assets upon divorce. Fast forward to Miller, in 2006, and the House of Lords was tasked with considering whether the short duration of the marriage was a factor which might justify a departure from 50/50. Certainly, the duration of the marriage is one of the statutory factors to which the Court is due to have regard when determining a financial award. However, in the majority of cases it is subsumed by the overriding factor of ‘financial needs’ dictating sharing of assets regardless of all other considerations – with often a greater share being awarded to the financially weaker party.
As was made plain by Baroness Hale in Miller, the predominance of needs in the vast majority of divorce cases arising in England & Wales means that there is only ever going to be a ‘very small number of cases’ – the very high net worth cases – in which a departure from equality might be appropriate.
Contrast the typical ‘needs’ case with a short, childless marriage where there has been the good fortune of surplus wealth being accrued: the financially stronger party (citing the case of Miller) has tended to argue that of themselves, these facts justify there being a departure from the usual ‘sharing principle’. As judicial application of that approach has unfolded over the intervening years, so too it could be said that the significance has increased of what actually constitutes a ‘short’ marriage in the first place. Back to that piece of string…
The case of Mr and Mrs Sharp is one such case where that significance has had a marked effect, considered as it was by the Court of Appeal to be a ‘fringe’ case falling within the very small number of cases in which Baroness Hale had envisaged, 11 years previously, that a departure from a 50/50 split of the marital ‘pot’ might be appropriate.
At first instance Sir Peter Singer was not persuaded that the short, childless marriage during which both Mr and Mrs Sharp had worked, and had largely kept their finances separate from each other, was sufficient to justify the departure from equality which Mrs Sharp – the recipient during the marriage of bonuses in excess of £10 million – had so vociferously argued for in her favour. The resulting award of £2,725,000 to Mr Sharp was 50% of the marital pot (which judicially was found to be £5,450,000).
Controversially the Judge went so far as to suggest that in the absence of having signed a pre-nuptial agreement, Mr and Mrs Sharp had by default subscribed to the sharing principle being applied to the division of their marital pot, and that to divide the pot on anything other than a 50% split would be a ‘retrograde step which would incidentally open up fresh arenas of factual dispute for spouses to rummage through’. The latter point was not lost on family lawyers who strive to find clear and consistent guidelines emerging from the case law to enable the provision of cost-effective advice to their clients, but unsurprisingly the Court of Appeal found that Sir Peter Singer’s suggestion of an automatic 50/50 split in the absence of a pre-nuptial agreement was ‘unsustainable and not supported by any authority’. The Court of Appeal held that in the case of Mr and Mrs Sharp’s short, childless, ‘dual-career’ marriage, where there was an excess of marital wealth above that required to meet the parties’ reasonable needs, this was one of those rare cases in which there should be a departure from equality. Mr Sharp’s award was duly adjusted downwards to an overall £2 million, leaving him with 37% of the marital pot.
The length of the piece of string is only going to be obvious and relevant in a small number of contested cases which come before the Family Court, but what of those cases which fall into the ‘grey area’ – not only in terms of the length of the marriage but also whether there is an excess of marital wealth above that required to meet reasonable needs. With a properly-formulated nuptial agreement now enjoying greater legal status than ever before in this jurisdiction, the issues arising in the Sharp case could be said to provide further force to the desirability of couples entering into a pre- or post-nuptial agreement as their best means of achieving certainty should they ever reach the unfortunate stage of unravelling their marital wealth.