In exercising its powers in financial order proceedings the court is required to have regard to the duration of the marriage1. For these purposes a period of cohabitation prior to marriage is ordinarily included, especially where the period is seamless and comes immediately before the marriage2. The end date of the marriage is ordinarily taken as the date of separation rather than the legal termination of the marriage3.
There is no reference in Matrimonial Causes Act 1973 to 'short marriages' or 'long marriages', but these terms are often used in a broad sense to categorise cases. It is inappropriate to attempt a precise definition; nor is it helpful to refer to marriage statistics. In practice a marriage of three years or less can properly be characterised as a 'short marriage', while a marriage of 15 years or more can readily be described as a 'long marriage'. There are, of course, many gradations between these two4. The consequences of falling on one side of the line or the other are marginal, and a broad assessment is usually preferred.
From an income standpoint, the existence of a 'short marriage' will lean the courts towards awarding short term, rehabilitative maintenance5; but this approach may be displaced by considerations of need, particularly if the marriage (and raising children) have had an impact on the wife's earning capacity. In this context the judgment of Ward LJ in C v C6 is often cited:
'If there is to be no clean break, and a periodical payments order is to be made, then the court must decide pursuant to s.25 what amount is to be ordered. The duration of the marriage is a factor relevant to the determination of quantum. If a periodical payments order is made, whether for 5p pa or whatever, the question is whether it would be appropriate to impose a term because in the absence of such a direction the order will endure for joint lives or until the remarriage of the payee: see s.28(1)(a).The statutory test is this: is it appropriate to order periodical payments only for such a term as in the opinion of the court would be sufficient to enable the payee to adjust without undue hardship to the termination of financial dependence on the paying party? What is appropriate must, of necessity, depend on all the circumstances of the case including the welfare of any minor child and the s.25 checklist factors, one of which is the duration of the marriage. It is, however, not appropriate simply to say, 'This is a short marriage, therefore a term must be imposed'.
As regards the division of capital, a short marriage will influence the outcome in two ways:
- First, by causing needs to be assessed in a less generous way. It has been said that in a short marriage case it is 'legitimate to look at the claimant's needs more conservatively than in a long marriage, because the standard of living that had a bearing on assessment of need had been enjoyed for a shorter period'7.
- Secondly, because any non-matrimonial property that is surplus to needs will tend to be returned to the contributor.
In Miller8, Lord Nicholls observed:
'A short marriage is no less a partnership of equals than a long marriage. The difference is that a short marriage has been less enduring. In the nature of things this will affect the quantum of the financial fruits of the partnership…In the case of a short marriage, fairness may well require that the claimant should not be entitled to a share of the other's non- matrimonial property. The source of the asset may be a good reason for departing from equality. This reflects the instinct- ive feeling that parties will generally have less call upon each other on the breakdown of a short marriage. With longer marriages the position is not so straightforward. Non- matrimonial property represents a contribution made to the marriage by one of the parties. Sometimes, as the years pass, the weight fairly to be attributed to this contribution will diminish, sometimes it will not. After many years of marriage, the continuing weight to be attributed to modest savings introduced by one party at the outset of the marriage may well be different from the weight attributable to a valuable heirloom intended to be retained in specie.'
Baroness Hale put it this way:
'The source of the assets may be taken into account but its importance will diminish over time. Put the other way round, the court is expressly required to take into account the duration of the marriage: s 25(2)(d). If the assets are not 'family assets', or not generated by the joint efforts of the parties, then the duration of the marriage may justify a departure from the yardstick of equality of division.'
Mostyn J similarly observed in N v F9 that in deciding whether the existence of pre-marital property should be reflected by a departure from equality, the court first needed to consider 'questions of duration and mingling'.
There is however no consistency among judges. In Jones v Jones10 for example, Wall P felt that an award of 20% to the wife seemed 'too small in the light of the fact that this was a 10-year marriage' and was more comfortable with the 33% awarded on appeal; whereas in K v L11, a 21-year marriage case, Wilson LJ upheld an award of 9.3% of the assets on a 'needs' basis, pointing to the lack of 'mingling', and rejected the submission that a long marriage justified, as of course, a percentage closer to one half. Referring to Baroness Hale's dictum above, he said:
'I believe that the true proposition is that the importance of the source of the assets may diminish over time. Three situations come to mind:
(a) Over time matrimonial property of such value has been acquired as to diminish the significance of the initial contribution by one spouse of non-matrimonial property.
(b) Over time the non-matrimonial property initially con- tributed has been mixed with matrimonial property in circumstances in which the contributor may be said to have accepted that it should be treated as matrimonial property or in which, at any rate, the task of identifying its current value is too difficult.
(c) The contributor of non-matrimonial property has chosen to invest it in the purchase of a matrimonial home which, although vested in his or her sole name, has – as in most cases one would expect – come over time to be treated by the parties as a central item of matrimonial property.
Whilst there may be inconsistency over the treatment of non- matrimonial property it remains clear that matrimonial property (i.e. the product of the parties' joint endeavours) will be shared equally regardless of the length of the marriage12.
- MCA 1973, s 25(2)(d)
- CO v CO  1 FLR 1095
- H v H  2 FLR 335
- See for example Fields v Fields  EWHC 1670 (Fam) where Holman J described a marriage of eight and a half years preceded by one year of cohabitation as "not a short marriage" taking into account that the couple had two children aged 7 and 5
- Attar v Attar  FLR 653, Robertson v Robertson  4 FLR 387, MD v D  1 FLR 810 & Fallon v Fallon  1 FLR 910
- C v C  2 FLR 26
- McCartney v Mills McCartney  1 FLR 1508
- Miller v Miller; McFarlane v McFarlane  1 FLR 1186
- N v F  2 FLR 533
- Jones v Jones  1 FLR 1723
- K v L  2 FLR 980
- See JS v RS  EWHC 2921 (Fam)