Age and length of marriage in financial settlement on divorce

When formulating a financial settlement on divorce the court will consider many factors; age of the parties to the divorce or civil partnership dissolution and the length of the union will have a significant relevance to the court's final ruling regarding assets and wealth.

Divorce after a long marriage

Parties divorcing after a long marriage may be nearing retirement age and the court may feel a wife in her fifties who has been a homemaker since marriage is unlikely to be able to reasonably find work to support herself once her finances are separated from those of her ex-husband.

However, it may also be reasonable for the court to assume that for parties to a divorce who are near retirement age the preservation of capital to support them in their non-working years would be crucial, thus it would be less likely that the court would require a transfer of assets or lump sum payment to an older spouse.

A long marriage is likely to have seen major contributions from both parties; therefore, the achievement of financial independence for both parties is likely to be more difficult and will be reasoned upon on an individual basis.

A short marriage may mean a 'clean break'

Where a marriage has been short and there are no children a Financial Clean Break Order (Clean Break) may be required by the court. If the wife is to look after the children it may be considered reasonable that she should be able to support herself within a certain period of time - in this instance a fixed term periodical payment order may be made.

The court may reason that young spouses are more able to borrow money than older spouses and, as such, when deciding lump sum and property transfer orders, a young husband may be expected to transfer the matrimonial home to his wife so that she may look after the children there, whilst he raise capital on the mortgage to enable him to purchase alternative accommodation.

If the marriage has been short and there are no children, parties can, as a general rule, expect to leave the union with whatever they brought to the marriage, thus property rights will be an important factor and periodical payments are less likely to be an appropriate arrangement. However, if one party to the short marriage has made significant sacrifices to get married, such as giving up a career or property, then this may mean the court will need to address more generous provision for that spouse on divorce.

If there are children of a short marriage, the parent who has care of them is likely to find their ability to achieve financial independence held back for a number of years and, as such, the length of the union will be less significant in the court's ruling.

Pre-marital cohabitation and financial settlement on divorce

In a court's consideration of a union the relevant section of the Matrimonial Causes Act 1973 (s.25 [2][d]) (MCA 1973) refers explicitly to "the duration of the marriage" as the cause for consideration in a financial settlement. However, when an extended period of cohabitation results seamlessly in a marriage it has been suggested that, in certain circumstances, the period of pre-marital cohabitation be considered as part of "all of the circumstance of the case" under s.25(1), MCA1973.

In CO v CO Mr Justice Coleridge held that, "to ignore a committed, settled period of cohabitation would fly in the face of the duty of the court to have regard to all the circumstances of the case".

Contact JMW Solicitors for expert financial settlement advice

The family law team at JMW are experienced in handling complex financial settlements on divorce and believe in bringing a positive and cost-effective contribution to your divorce settlement by offering outstanding advice on separation and divorce law.

For a free initial discussion of your circumstances contact JMW's family law department on 0345 872 6666