CHAPTER ONE – SHORT MARRIAGES AND S25 MCA 1973
Let us start with the obvious question: What constitutes a short marriage?
While there is no standard legal definition of a short marriage, it is generally accepted that a marriage of five years or less, would be regarded by the court as short. The duration of the marriage, as we will see below, is one of the factors the court must have regard to in accordance with s25(2) Matrimonial Causes Act 1973, when determining a financial remedy case. Duration is not, of course, an isolated factor. Associated with short marriages are many other considerations, such as needs, contributions and children.
Throughout the course of this book, we will be looking at how the court treats the periods before and after the marriage, when assessing the duration of the marriage in accordance with the s25 criteria. We will also be exploring how the case law has evolved over the years and some of the key legal principles that have been established arising from these cases, that will need to be considered when it comes to advising our client. The length of the marriage will potentially have a significant impact on the claims of the parties arising from divorce. A claim arising after a long marriage will usually be far greater than one arising after a marriage of one or two years. On first blush, it might be fair to assume that a financial settlement following a short marriage would be arrived at more easily than following a marriage of longer duration, given that there is less likely to be children of the family and the marital acquest more limited. But is this in fact, a realistic assumption? We will look at how the court treats non- matrimonial property in short marriages, and how the sharing principle is generally applied in these cases. We will also consider some of the case law that has evolved since C v C (1997)1 in respect of the quantum and term of periodical payments, to the more recent case of FF v KF (2017)2 in which Mostyn J has given some definitive guidance in respect of income needs.
As we know, the length of the marriage is just one of the various factors that must be taken into account by the court as part of the s25 exercise. Over the years, the family courts have developed three key principles and extra-statutory factors in respect of financial remedy proceedings, namely: needs, sharing and compensation. In the House of Lords’ decision in the conjoined cases of Miller v Miller; McFarlane v McFarlane (2006)3 these three factors were identified. s we progress through the chapters in this book, we will look at how these established legal principles should be applied in marriages that may only be a few years in duration, and whether they should apply in the same way as to a long marriage. We will also look at the position when there are children of the marriage and how the court might approach the future needs of both the parties and the children in the context of a short marriage case.
Section 25 MCA 1973
The touchstone of every financial remedy case is s25 (2) of the Matrimonial Causes Act 1973, the so called ‘s25 criteria’. Equivalent provision is set out in Schedule 5 Part 5 to the Civil Partnership Act 2004 at paragraph 21 (2).
The power of the court to make financial orders rising from a divorce is derived from the provisions of Part II of the Matrimonial Causes Act 1973. The court has the power to make any or all of the following orders:
Secured periodical payments
Variation of settlement
In exercising its powers, the court must have regard to “all the circumstances of the case”, as well as to a list of specifically identified matters. Of course, the first consideration must be given to the welfare of any children, but thereafter to the matters set out in s25(2)(a) – (h) MCA 1973.
The s25 factors are not formulaic and not listed in any order of importance. They are simply a list of relevant considerations the court must refer to when deciding a case. They can be summarised as comprising:
The resources available to both parties, extant and/or reasonably foreseeable;
The financial needs of the parties, bearing in mind their standard of living, their ages and the length of the marriage, and any disabilities.
In addition to the above, the court must have regard to:
The contributions of each party
The conduct of each party
Any benefit either part will lose as a result of the divorce.
S 25(2)(d) Age of the parties and duration of the marriage
As noted above, s25(2)(d) MCA 1973 directs the court to have regard to “the age of each party to the marriage and the duration of the marriage”. Aside from the consideration as to why those two limbs are linked together in the same sub-section, the statute is clear in its wording. We must look at the actual “length of the marriage”.
Of course, the focus of this book will be on s25 (2) (d) in respect of the duration of the marriage, however it is worth briefly mentioning the preceding reference to the age of the parties. This limb of the statue mainly goes to the issue of earning capacity and pension sharing. Clearly, a distinction could be drawn between a wife in her fifties who has never worked, with a young wife in her thirties with her whole career ahead of her. The younger wife will usually be seen to have some degree of earning capacity, whereas the older wife may have difficulty in entering the job market, following financial dependence on her spouse as the main earner, for example. Furthermore, the older woman will clearly have fewer years during which to amass savings with which to support herself in retirement. Another consideration might be, for example, that a 25-year term mortgage may not be available to the older wife and as such, the mortgage repayments would be more expensive over a shorter term. The older woman having a more vulnerable earning capacity could mean that a clean break is not possible. Finally, often with age, comes health concerns. By way of example, in Fields v Fields4 the husband was 59, worked a 70-hour week, six days per week, with a “great deal of punishing travel” and suffered from health conditions that were said to be exacerbated by the high demands of his professional life. The court found that this would inevitably affect his ability to work in due course. Holman J concluded that he could not “reasonably expect or assume that the husband should continue to work as he does for much longer and certainly not past the age of about 65”5 Age can also be relevant to the term during which a capitalisation of income needs could be calculated. This gives rise to the so-called Duxbury6 paradox, that a young wife following a short marriage would need more significant financial provision by way of an income fund, than an older and often longer married wife, solely because she is likely to live longer.
In reality, the application of the s25 factors could lead different judges on the same set of facts to various different conclusions, all of which could fall well within the scope of their vast judicial discretion. A number of significant decided cases has established a usual approach to the as to the way in which a court will deal with a given set of facts. Prior to the landmark case of White7, the norm was than an applicant spouse would merely have their reasonable requirements met. “Reasonable requirements” was a gloss on the term ‘needs of the parties’ in s25(2)(b) MCA 1973, expanded to reflect that needs is a fluid concept, having regard to the other factors the court is bound to consider, such as standard of living.
After marriages of very short duration, the court may order no financial award at all. In the case of Krystman, the marriage lasted for about two weeks and a small amount was ordered to enable the wife to adjust.
Krystman v Krystman (1973)8
In this case, the husband was a soldier stationed in Italy. The wife was an Italian national. The parties had an affair, which culminated in a ‘shotgun’ wedding in 1946, when the wife believed that she had fallen pregnant. The parties cohabited for two weeks after the marriage, before the husband was repatriated to the UK. The wife remained in Italy and their anticipated child was not born. The parties remained in communication for a short period of time, but never lived together again. Neither party supported the other financially, or sought support from the other. The husband moved in with a new partner in 1948. He obtained decree nisi in England on the basis of five years’ separation in January 1972. The wife applied for financial remedy. Decree absolute was granted in July 1972. The husband and wife had similar incomes, with the husband supporting himself and his new wife on £1,300 pa, and the wife supporting herself on £1,500 pa. At first instance, the Judge ordered the husband to pay the wife £75 pa on a joint lives’ basis.
The husband appealed. The appeal was allowed, and the wife’s application was dismissed. In all of the circumstances, given that there was a mere fortnight of cohabitation, no children, a 26-year separation and no attempt by either party to make any contact, the court found that the husband should not be required to make any financial provision for the wife. Even a nominal order would not be appropriate, as if the husband came into wealth unexpectedly, it would not be fair for the wife to have any share in it. The case fell under the ambit of s.6(2)(a) Divorce Reform Act 1969.
There is no standard definition of a short marriage, but a marriage of 5 years or less would usually be regarded as short.
The duration of the marriage is only one of the many factors the court must have regard to when undertaking the s25 exercise. There is no priority in respect of the application of the s25 criteria.
Pre-White case law in respect of short marriages is no longer good authority and the old ‘norm’ in respect of only “reasonable requirements” being met is now well behind us.
The case of Krystman is confined to its facts and demonstrative only of what the position once was.
It is clear that case law continues to emphasise the vast width of discretion the court has in applying the s25 factors to a given set of facts. As circumstances vary so significantly from case to case, it can be difficult to discern clear and consistent principles in this area of law.
1 C v C (1997) 2 FLR 26
2 FF v KF (2017) EWHC 1093 (fam). (2017) All ER D 94
3 Miller v Miller; McFarlane v McFarlane (2006) UKHL 24
4 Fields v Fields (2015) EWHC 1670 (Fam) (2016) 1 FLR 1186
5 Paragraph 221
6 Duxbury v Duxbury (1987) 1 FLR 7
7 White v White (2000) HL 54
8 3 ALL ER 247, (1973) 1 WLR 927