When formulating a financial settlement on divorce, the court will consider many factors. Among these, the court has to consider both the ages of the parties in the divorce or civil partnership dissolution and the length of their relationship.
Parties divorcing after a long marriage face particular issues. They may be nearing retirement age and so there is likely to be a focus upon their pension provision and capital security as they will have fewer 'working years' in which to build up savings. The court may feel a wife or husband in his or her fifties or sixties, who has been a homemaker since marriage, is unlikely to find work to support him- or herself after the split. At the same time, a party nearing retirement is unlikely to be in a position to pay maintenance for more than a few years so the division of savings and investments would be of prime importance.
After a long marriage, the court's starting point in dividing the assets, including pension provision, will be to look at equality. However, there could be reasons why this would not produce a fair outcome, particularly if either party's needs for a home and sufficient income to meet their living expenses cannot be met from an immediate 50/50 division of the assets.
People often ask what the courts mean by a 'long' marriage. There is no guidance on this in the legislation and in fact the courts are not seeking to categorise marriages as long, short or anything else. Each case is highly individual. Nevertheless, the court would be more likely to question whether a 50/50 division is appropriate in a marriage lasting two years than it would if the parties had been together for 20 years. That does not mean that a 50/50 division would be inappropriate in all two-year marriages; it just means that the court would be more concerned to look at where the money had come from in the case of a marriage of this length than it would after a 20-year partnership.
Where a marriage has been short and there are no children, a financial clean break order may be required by the court. In the case, for example, of a two-year marriage with no children, the court is more likely to conclude that the parties should be financially self-supporting either immediately or within a defined period of time than if the parties had been together for several decades.
If the parties have been together for many years, the court is going to be very reluctant to look in detail at the source of the parties' assets following the pooling of financial resources over a lengthy relationship. If the relationship is of short duration, the only 'fair' way to proceed may be to look at what the parties brought to the marriage in terms of financial contributions and reflect this in the financial settlement. This consideration will almost always be secondary to a consideration of the parties' needs, particularly if there are young children involved.
Age is a related factor. The court will look at this in terms of the parties' respective positions in the labour market and the stage they have reached in their chosen career, as well as their ability to retrain to re-enter employment if they have taken time out to care for children or elderly relatives.
The relevant section of the Matrimonial Causes Act 1973 is section 25(2)(d). This refers explicitly to "the duration of the marriage" as a relevant factor in determining a financial settlement. However, when an extended period of cohabitation leads seamlessly into a marriage (or civil partnership), the period of cohabitation will 'count' towards the length of marriage. To take an example, a couple may only have married three years prior to the divorce. On the face of it, this would seem like a short marriage. However, if they had lived together for a decade before their marriage, the court would look upon the marriage as having lasted for 13 years and therefore a partnership in which the origins of the assets assumes a lesser importance.
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.
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