Short marriages and civil partnerships and their effect on financial settlements
Average read time: 3 minutes
At an early stage of taking legal advice, parties preparing for the ending of their marriage or civil partnership understandably often ask for a quick guide to the likely outcome for their financial arrangements. It is difficult for any lawyer to give anything but an approximate assessment because everything depends on the financial resources of both parties: this usually takes some time to establish.
Starting point when considering the rearrangement of finances
When deciding how finances are to be apportioned between the parties, Parliament has laid down a number of factors to be taken into account when the court comes to consider what would be a fair solution.
These factors are:
- the financial resources of each party including income (from all sources), earning capacity, and savings and other assets
- the financial needs, obligations and responsibilities of each party (e.g. for children)
- the standard of living enjoyed during the marriage or civil partnership
- the age of each party
- the duration of the marriage or civil partnership
- any illness, physical or emotional, suffered by either party
- the conduct of each party, if relevant
- any financial benefit which would be lost to either party by the divorce.
Additional gloss to the statutory criteria
Over the years, the courts have established a number of precedents which will be applied when the statutory rules are applied. The two most important of these rules are that:
- unless there are exceptional circumstances, the court will endeavour to put both parties in approximately an equal financial position as they leave the marriage or civil partnership and
- time spent as the carer of a child or children will be given the same credit as paid work.
What ‘exceptional circumstances’ might work against an equal sharing?
As stated above, one of the factors that the court must take into account is the ‘length of the marriage’. The reason for this is that, in the vast majority of cases, parties arrange their financial affairs in such a way that, over time, those finances become intermingled. It becomes increasingly difficult to identify one asset or sum of money as being obviously the property of one party or the other. Even if such identification could be made, there are usually assets which can be set against it.
However, where the parties have been married or in a civil partnership for only a short time then such identification is more often possible and if so, will be taken into account.
Furthermore, in a short marriage or civil partnership, particularly one which is childless, it is easier to identify one party as having contributed more, sometimes much more, not only financially but sometimes also in terms of other forms of contribution e.g. work on home improvements, earnings from a second job etc., etc.
What will be regarded as a short marriage or civil partnership?
Whilst there is no statutory definition of ‘short’, any marriage or civil partnership of less than 5 years is likely to be categorised as ‘short’.
The system which applies in England and Wales to resolving situations such as those mentioned here gives to the courts a wide discretion to find a ‘fair’ solution. It is emphatically not based on a mathematical formula but is sufficiently flexible to resolve most situations.
These are complex issues and proper legal advice is strongly recommended. A solicitor will always try to find a negotiated settlement and the involvement of lawyers invariably reduces the prospect of having to go to court for a solution.
If you or anyone you know, are affected by the issues raised above and would like more information or some preliminary, confidential advice, please contact one of our experienced experts in our family team by email or telephone.
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