Does the length of marriage affect the divorce settlement?
There are various different factors that can affect financial order decisions used to set out the financial arrangements between the two divorcing parties (known as the divorce settlement).
The length of the marriage can have a significant impact on the determination of a divorce settlement.
What does the law say about the length of marriage?
According to section 25 (2) (d) of the Matrimonial Causes Act 1973, when it comes to deciding how to divide the ‘matrimonial pot’ (ie the collection of assets which need to be split between the parties): “the court shall in particular have regard to … the age of each party to the marriage and the duration of the marriage”. So it is clearly stated that the length of the marriage has a bearing on the divorce settlement.
Short term marriage divorce settlements
What’s considered a short term marriage?
As a general rule, a marriage which has lasted less than 5 years is considered to be a ‘short term’ marriage.
What does a short term divorce settlement look like?
The general principle is that the matrimonial pot should be divided equally upon divorce. The starting point is a 50:50 split of the matrimonial pot.
The longer a marriage has lasted, the more likely it is that a court will decide that all assets need to be equally split between the divorcing parties, irrespective of where these assets came from.
Conversely, in the case of a short term marriage, the court is more likely to divide the assets in line with the capital contributions of each party.
Short Term Divorce settlement Example:
Jack and Jill get divorced after just two years of marriage. Jill was a wealthy woman upon entering the marriage whereas Jack was destitute.
In this scenario, it is likely that Jill will be able to retain most of her assets upon getting divorced; the court is unlikely to split the matrimonial pot 50:50.
What if there are children from a short term marriage?
Section 25 (1 ) of the Matrimonial Causes Act 1973 places a priority on the welfare of any children under the age of 18 when it comes to deciding how to split the matrimonial pot, noting that any decision should be made with the: “first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.”
So the welfare of children will be the primary consideration, irrespective of how long the marriage lasted – or indeed any other factors. Children of the divorcing couple (including step children) who are minors will be given priority in any financial order decision of the court.
What are the best financial options for short term marriages?
In the case of short term marriages with no children, it is likely that the divorcing parties will want to try and put themselves back in the respective financial position they were in prior to entering the marriage. It may therefore be a good idea to sell the matrimonial home (ie if they bought a house together), so that the money can be divided up accordingly.
Long term marriage divorce settlements
What’s considered a long term marriage?
It is not entirely clear what is considered a ‘long’ marriage by the courts. In the Court of Appeal case of Sharp v Sharp  EWCA Civ 408, even though the marriage lasted around 6 years, it was still considered to be short enough to deviate from the 50:50 split.
How does a long term marriage settlement differ from a short term marriage settlement?
Courts are more likely to enforce a 50:50 split of matrimonial assets in a long term marriage, subject to the other principles such as fairness and the welfare of any children under 18.
Long term Divorce Settlement Example:
In the example of Jack and Jill above (ie where Jill entered the marriage rich and Jack was poor), if the marriage lasted a decade instead of two years, it is likely that Jack and Jill would exit the marriage as financial equals.
What are the best financial options for long term marriages?
Long term marriages are more likely to have produced children. In this case, whichever parent becomes the primary carer is likely to receive the lion’s share of the matrimonial pot (although this depends on the total value of assets).
If there is a matrimonial home, often the mother will remain there with the children, and the father will agree to pay the mortgage and other regular maintenance payments.