Member Article

In the recent case of E v L [2021] EWFC 60, the court has reconsidered how the sharing principle applied to marriages that are short and/or childless.

Through the years, family courts have developed three key principles for financial remedy proceedings: “needs”, “sharing” and “compensation”. This article focuses on the two former principles. The principle of needs, is the provision that assets will need to be divided to meet both party’s housing and financial needs. The sharing principle is that that the matrimonial pot will be divided equally between the parties unless there is a good reason to depart, such as one party’s needs not being met on an equal division.

But how should these principles be applied in marriages that may only be a few years in length (“short marriages”)? Should they apply in the same way as a marriage of 30 or 50 years? How should they apply if there are children of the marriage?

Prior to 2021, the key case addressing these questions was Sharp v Sharp [2017] EWCA Civ 408, which has been used to suggest that in the case of a short and childless marriage, the sharing principle should be departed from and the financial remedy need only address the needs of the parties, conservatively interpreted. But last month in the case of E v L [2021] EWFC 60, the court rejected this position. The case centred around a 3-4 year marriage (the parties were in dispute about when cohabitation began). The wife contended that she should be paid half the marital acquest, which she claimed was £5.5m. The husband offered £600,000, as he asserted that the wife should be confined to very conservatively assessed needs.

When it came to the sharing principle, Mr Justice Mostyn found that it would be discriminatory for the courts to come to a different conclusion based on whether or not the parties had children. In doing so, he established that it is not for the court to value the marriage based on whether there were children: the sharing principle applies with or without children. He stated ‘In my judgment for the court to start asking why there are no children, and whether this denotes a lesser extent of commitment to the relationship, is to make windows into people’s souls and should be avoided at all costs.’

But what about the length of the marriage? For this question, further consideration needs to be given to the family law principle “marital acquest”, meaning the increase in value of the assets from the start of the marriage or commencement of cohabitation, to the time of trial. This is often used by the courts to calculate what one particular party is entitled to on divorce. In E v L, Mr Justice Mostyn said that ‘There is absolutely no logical reason to draw a distinction between an accrual over a short period and an accrual over a long period.’ Marital acquest can be used whatever the length of the marriage, the principle doesn’t simply disappear if the marriage is under a certain number of years. The duration of the marriage, as one of the statutory check list factors that the court has to have regard to, would be reflected by the fact that in a short marriage, the accrual would almost inevitably be less than in a longer marriage. In the case of E v L, the court ultimately awarded the wife £1,515,00, which equated to half the marital acquest, as calculated by the court, which included from the date the wife said cohabitation commenced, to the date of trial.

So, what does this mean for cases going forward? As a result of this judgment, parties who are getting divorced after a short marriage without children should be aware that the sharing principle will still apply to the marital acquest and will only be departed from in the ‘fringe of cases’. If there are concerns about how a particular asset may be treated on divorce, then a family law specialist will be able to provide advice on how the court may treat the asset.