CHAPTER TWO – HOW TO ASSESS THE LENGTH OF A MARRIAGE
2.1 How short is a ‘short marriage’?
There is no statutory definition of a short marriage, and as such, it is necessary to refer to the relevant case law. It is generally accepted that a marriage of less than 5 years will be regarded by the court as short.
There are some borderline cases which describe 6-7 year marriages as short, including:
- In Sharp v Sharp[1], the parties cohabited from the end of 2007, married in June 2009 and separated in December 2013. Singer J, the judge at first instance, described the marriage of 6 years as “not so desperately short … as some, but still by no means lengthy”. The Court of Appeal reaffirmed that the marriage was indeed a short one.
- In H v H[2], the parties cohabited from June 1997 and regarded themselves as married from September 1998 after a Spanish marriage ceremony. They were legally married in September 2003 and separated in the first half of 2005. The marriage of almost 8 years was described by Singer J as “a relatively short marriage comprising cohabitation over around 7 years”[3].
- In R v R[4] the parties cohabited from March 2002, married in August 2002 and separated in January 2009. Coleridge J described the 7-year marriage as a “short-ish marriage case”[5].
- In FF v KF[6], the parties commenced their relationship in 2004, became engaged and planned their marriage ceremony for 27 December 2007, but separated three days before the ceremony. The parties reconciled in October 2010, cohabited from April 2011, married in October 2011 and separated in September 2013. Despite the 9-year off and on relationship, Mostyn J noted, “everyone seems to have been content to have characterised this as a “short marriage”…”[7].
There is therefore some scope for discretion as to what counts as a short marriage, and, as ever, the court’s assessment of the duration of the marriage will depend on the circumstances of the case.
In any event, the duration of the marriage is just one of the factors that the court considers relevant alongside the other factors at s 25(2) of the Matrimonial Causes Act 1973.
2.2 When does a marriage start?
2.2.1 Establishing cohabitation as marriage
Historically, the court considered the duration of the marriage to be the length of time between the date of the marriage to the date of the breakdown. Only in exceptional circumstances would the court take into account periods of pre-marital cohabitation. However, over the last four decades, case law has firmly established that any premarital cohabitation will be added to the length of the marriage, when the court assesses the duration of the marriage. Now pre-marital cohabitation may be treated as either extending the duration of the marriage, or as a circumstance of the case to be taken into account more generally.
One of the most significant cases involving premarital cohabitation is GW v RW[8], in which the parties had married in April 1989 after cohabiting for around 18 months. In 1995 the parties separated for 18 months before reconciling and cohabiting for a further a 5 years. The wife petitioned for divorce in 2001. Mr N Mostyn QC (as he then was, sitting as a Deputy High Court Judge) concluded that it would be unfair not to include the period of cohabitation preceding the marriage in the duration of the marriage where there had been no major change in the way in which the parties lived during and after the marriage. Further, it would not be right to include in the duration of the marriage the period in which there had been a formal and defined separation. Therefore, the duration of the marriage was determined to be just over 12 years. Mr Mostyn said at paragraph 33:
“… The case of White v White has emphasised that the law in this area is not moribund but must move to reflect changing social values. I cannot imagine anyone nowadays seriously stigmatising pre-marital cohabitation as ‘living in sin’ or lacking the quality of emotional commitment assumed in marriage. Thus, in my judgment, where a relationship moves seamlessly from cohabitation to marriage without any major alteration in the way the couple live, it is unreal and artificial to treat the periods differently. On the other hand, if it is found that the pre-marital cohabitation was on the basis of a trial period to see if there was any basis for later marriage then I would be of the view that it would not be right to include it as part of the ‘duration of the marriage’.” (emphasis added).
In Co v Co[9] the parties cohabited for 8 years before a 4-year marriage. Coleridge J determined that the 8 year period of cohabitation should be given full weight where it “seamlessly and immediately pre-dated the marriage”. He noted that pre-marital cohabitation cannot be ignored in assessing “all of the other circumstances of the case” per s25(1) MCA 1973, and in seeking to achieve fairness between the parties. Therefore, assets accrued during premarital cohabitation would in some cases be treated as matrimonial.
Following GW v RW[10] and Co v Co[11], it is standard for any period of premarital cohabitation to be added to the length of a marriage. The commencement of cohabitation in a settled relationship may well be treated as the appropriate start date of the marriage. This approach reflects changes in social mores and the fact that many people now choose to live together prior to marriage or civil partnership.
In C v C[12] Moylan J acknowledged that in practice it can be difficult to establish a clearly defined start date of a committed pre-marital relationship and the court will not waste time investigating the precise date of cohabitation. He noted at paragraph 62:
“Parties should not be encouraged to expect the courts to enter into any extensive investigation of the nature of their premarital relationship many years later. It can also raise issues which do not appear in the Matrimonial Causes Act 1973 in specific terms and over which there could be an active debate in the search of the precise definitions.”
2.2.2 Examples: where pre-martial relationship is not included in the duration of the marriage
In McCartney v Mills-McCartney[13] Bennett J found that before their marriage, the parties had a close relationship, spent many nights together, holidayed together and became engaged, but that the relationship was not “a settled committed relationship moving seamlessly into marriage” in circumstances where the wife had purchased a property for herself with the benefit of a written loan agreement with the husband’s company in the period before the marriage. On relevant cohabitation, Bennett J noted at paragraph 55:
“Cohabitation, moving seamlessly into and beyond marriage, normally involves, in my judgment, a mutual commitment by two parties to make their lives together both in emotional and practical terms. Cohabitation is normally but not necessarily in one location. There is often a pooling of resources, both in money and property terms. Loans between cohabitants may be forgiven.”
In N v F[14], while there had been a period of premarital cohabitation, there was a nine-month period of separation and the breaking off of the parties’ engagement before the parties’ eventual marriage. On this basis Mostyn J was satisfied that the parties’ cohabitation did not move “seamlessly into marriage and did not ‘extend the span of marriage de facto by reference to the premarital relationship”.
2.2.3 Examples: where pre-martial cohabitation is included in the duration of the marriage
The court may find that the period of pre-marital relationship extends even before cohabitation, if the relationship is sufficiently committed. This was the case in J v J[15], in which Bennett J considered that the parties’ relationship commenced at the date of their engagement, the year before their cohabitation and 3.5 years before their eventual marriage. The relationship was found to have endured for just over 7 years in total, notwithstanding that the marriage was just 3.5 years.
In IX v IY[16] Williams J considered the approach adopted in GW v RW[17], (as well as other authorities), and concluded that premarital cohabitation should be treated as either extending the period of the marriage to create a marriage of longer duration, or, as a circumstance of the case, to be taken into account in a more general way. He explained that cohabitation prior to marriage is relevant because it may indicate that the parties had at that point entered into a partnership which may be indistinguishable from that which arises after marriage. At paragraph 68, Williams J described pre-marital cohabitation as where:
“prior to the formal commencement of marriage, the parties had entered into the sort of partnership involving the mutual support, working together, rights and obligations which may be indistinguishable from those which arise when parties begin to live together only after marriage”.
In the same paragraph he gave the following guidance:
“What the court must be looking to identify is a time at which the relationship had acquired sufficient mutuality of commitment to equate to marriage. Of course, in very many cases, possibly most cases, this will be very obviously marked by the parties cohabiting, possibly in conjunction with the purchase of a property. However, in other cases, and this may be one of them, it is not so easy to identify. The mere fact that the parties begin to spend time in each other’s homes does not of itself, it seems to me, equate to marriage. In situations such as this, the court must look to an accumulation of markers of marriage which eventually will take the relationship over the threshold into a quasi-marital relationship which may then either be added to the marriage to establish a longer marriage or which becomes a weightier factor as one of the circumstances of the case.”
In that case, Williams J concluded that the parties’ pre-marital relationship should be taken into account in the duration of the marriage because it was “a committed relationship, which was moving towards marriage, in which children were contemplated and hoped for and in which the pattern of life which developed… continued largely without change, after the marriage took place”[18].
2.2.4 VV v VV [2022] EWFC 41: recent guidance on the court’s approach
In VV v VV[19], Peel J review this issue and noted at paragraph 44:
“… where cohabitation is in dispute, the court may need to inquire to an extent into the state of the relationship when evaluating the durability and permanence of the alleged cohabitation.”
Peel J gave the following guidance as to what the court should look for when determining cohabitation disputes at paragraph 45:
“… the court should also look at the parties’ respective intentions when inquiring into cohabitation. Where one or both parties do not think they are in a quasi-marital arrangement, or are equivocal about it, that may weaken the cohabitation case. Where, by contrast, they both consider themselves to be in a quasi-marital arrangement, that is likely to strengthen the cohabitation case.”
In VV v VV[20], the relevance of the issue was whether assets accrued during the period of the parties’ engagement and pre-marital cohabitation should be shared equally between the parties. The marriage had lasted for just five months, and the parties were in their fifties and had no children. The parties’ became engaged in March 2019 and married in January 2020. The wife claimed that cohabitation began in November 2018, while the husband asserted that it started in December 2019. Peel J found that cohabitation does not require spending every night together under the same roof, particularly when a relationship straddles international boundaries. However, in this case, cohabitation did not commence until December 2019 when the husband left the USA permanently, and the parties moved into a London home together. Until then, they had been in a committed relationship where they spent time together, were supportive and affectionate towards each other, but which fell short of a quasi-martial relationship.
Peel J determined that the wife’s sharing entitlement applied only during the period that he had found that they cohabited. Matrimonial property consists of everything acquired during the marriage (which should include periods of pre-marital cohabitation and engagement)[21]. While an engagement may be an indicator of the strength of the parties’ commitment and shared life, it is not determinative of a sharing entitlement[22]. There is currently no reported authority where the fact of engagement generated a sharing entitlement, regardless of cohabitation. Therefore, although parties’ engagement is a relevant factor when considering the parties’ commitment and shared life, it did not by itself bring about a sharing entitlement. As the parties did not cohabit until after the husband acquired company shares, ceased employment and entered into a compromise agreement, the husband’s shares were non-matrimonial and the wife was not entitled to share in them.
2.3 When does a marriage end?
In respect of the end of a marriage or civil partnership, the court will usually look at the date of separation, as opposed to the date of the final decree. However, it may be that although a marriage has broken down, the parties remain emotionally and financially enmeshed with one another. If this is the case, the court may consider it inappropriate to ignore the period post-separation during which the parties continue to be involved.
2.3.1 General guidance
In GW v RW[23], Mr N Mostyn QC (as he then was, sitting as a Deputy High Court Judge) said that when assessing the duration of the marriage, the court has always looked at the position de facto rather than de jure. For example, the end of the marriage is always taken as the date of separation, rather than the date of the decree absolute. In GW v RW, Mr Mostyn took the view that it would be unrealistic to include the 18-month period in which the parties were separated (with the wife petitioning for divorce and later withdrawing the petition) as part of the duration of the marriage.
The date of separation was of significance in WG v HG[24], which was not a short marriage case, but contains important insight from Francis J regarding how the court should treat post marriage separation. The wife suffered a catastrophic brain injury following a horse-riding accident and made a good recovery but had ongoing needs arising from the accident. Before the accident, the parties had separated, with the husband presenting a divorce petition, but later reconciled, with the husband withdrawing the petition. The wife’s position was that the parties remained reconciled at the time of her accident, and the husband’s was that they had separated before the accident. The practical effect of this was the question of the husband’s duty to meet the wife’s post-accident needs. Francis J concluded at paragraph 34 that:
“As a matter of pure and obvious fact, the accident occurred during the marriage, the parties were not divorced. It occurred at a time that the parties knew that the marriage was more or less over but when the wife was still completely financially dependent on the husband. The husband properly met that obligation and has continued to do so, albeit under protest”
He added at paragraph 35:
“If and insofar as the wife has a need arising from the accident, and if the husband is able to afford to meet that need, I am clear that he must do so. No one else is there to do so and there is no evidence at all that the wife would receive any state provision. I do not think in these cases it is possible to draw a line in the sand and say that if anything happens after a fixed point in time, it is nothing to do with the husband or this court. I have to make an order that is fair having regard to all of the circumstances of the case, and if I find that the wife has a financial need as a consequence of her accident, or indeed any other need, and if I find that the husband is able to meet it, then he should do so. Nor can I, in some artificial or arbitrary way, reduce the amount of support that the husband should provide to the wife, on account of the fact that the marriage was almost over at the date of the accident.”
In MB v EB[25] the wife asserted that the marriage, which commenced in 2004, and was a short marriage, with the parties separating in 2004 when they stopped living together. The husband argued that the parties in fact separated in 2016, when he issued divorce proceedings. Cohen J considered that the approach outlined by Williams J in IX v IY[26] for assessing the beginning of a marriage, can equally be applied to an attempt to define the date of the end of the marriage. The court’s approach should be to consider when the relationship ceased to have “sufficient mutuality of commitment to equate to marriage”. Cohen J noted, “it is a truism that marriage comes in all different shapes and sizes. What may be important to one couple, may be trivial to another”[27].
Cohen J found that the parties separated in 2004 because after 2004 they spent more time apart than they did together, the parties’ met their own income needs while apart and, from 2005, the husband had other relationships and a separate home with neither party able to access the other’s property. In addition, the parties executed a separation agreement in 2011 which stated that they had separated in 2004. However, Cohen J considered it inappropriate to disregard the entire period between 2004 to 2016 (when proceedings were brought) from all further consideration, acknowledging that neither party had moved on emotionally until after 2016.
2.3.2 Reconciliation post-divorce: S v S (Financial Provision: Cohabitation after divorce) [1994] 2 FLR 228
Reconciliation between parties’ post-divorce may be approached in a similar way to premarital cohabitation as was established in S v S. In S v S, the parties began living together in 1963, married in 1969 and had two children. In 1976 the wife issued divorce proceedings, which culminated in decree absolute in 1977 followed by a consent order. The husband was to remain in the family home with the children until the youngest child attained the age of 18. Thereafter, the property was to be sold and the net proceeds divided equally between the parties. The husband was to pay £100 per month to the wife by way of periodical payments, but there was otherwise to be a clean break. During the Christmas period of 1977, the parties reconciled, and the wife returned to the family home. The property was sold in May 1978 and a new property purchased in the joint names of the parties. They continued to reside together until 1990 when the relationship finally broke down. In April 1992 the wife applied to set aside the consent order of 1977. In September 1992 she applied for leave to appeal out of time and sought an increase in the quantum of the periodical payments.
The court allowed the wife’s appeal on the basis that there were new circumstances which invalidated the basis upon which the consent order was agreed, as per Barder v Caluori[28]. The sale of the family home in 1978 made the order meaningless and unenforceable, and the resumption of cohabitation by the parties had undermined the fundamental assumptions which underpinned the consent order. In applying the s25 criteria the court was obliged to regard the periods of cohabitation separately from the period of eight years in which the parties were married. In this case the court gave considerable weight to the role the wife had played throughout the course of the relationship, including post-marital cohabitation, over circa 29 years, in being a mother to the children, running the family home and supporting the husband in his career. There was therefore to be a clean break along the Duxbury lines.
2.3.3 Post-separation delay: Butler v Butler [2023] EWFC 2453
Butler v Butler is an example of a case where the court found that the parties’ marriage effectively lasted six years although divorce proceedings were not started until several years later. After they separated, the parties were found to have remained married in name only. Moor J dismissed the wife’s appeal in financial remedy proceedings where the judge had made an order that did not meet her housing needs because there were insufficient assets to do so. The parties lived together only briefly. The wife was based in Birmingham until 2007, when she moved to East London, and she rented separate accommodation from then on. The husband also lived in East London. He inherited a tenanted property from his father in 2007. He eventually sold the property in 2015. With the sale proceeds, he purchased a house. At the final hearing, the main issue was the parties’ housing needs. In terms of income, the parties had been financially independent of each other for several years. The wife sought the sale of the husband’s house and £300,000 to rehouse herself, and their two children in a three-bedroom property in East London.
Recorder Anderson found that the husband’s property was non-matrimonial in nature. He considered that the order the wife sought would result in the husband becoming homeless. He ordered the husband to pay a lump sum of £58,000 on a clean break basis, which the husband could raise by equity release. Moor J dismissed the wife’s subsequent appeal. He found that Recorder Anderson was entitled to make the order and the husband’s non-matrimonial property should not be invaded further.
Moor J’s judgment is a reminder that where a judge concludes that a case is a needs case, this does not mean that they must make an order that satisfies both parties’ needs. In many cases, there are sufficient assets to meet the parties’ needs and that is the right outcome, even if it means invading non-matrimonial property. However, this case fell into a different category where the assets were insufficient to meet both parties’ needs.
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[1] [2017] EWCA Civ 408, [2017] 2 FLR 1095.
[2] [2009] EWHC 494 (Fam), [2009] 2 FLR 795.
[3] See paragraph 13.
[4] [2013] EWHC 3093, [2013] 1 FLR 120.
[5] See paragraph 9.
[6] [2017] EWHC 1093 (Fam).
[7] See paragraph 5.
[8] [2003] EWHC 611 (Fam), [2003] 2 FLR 108.
[9] [2004] EWHC 287, [2004] 1 FLR 1095.
[10] [2003] EWHC 611 (Fam), [2003] 2 FLR 108.
[11] [2004] EWHC 287, [2004] 1 FLR 1095.
[12] [2007] EWHC 2033 (Fam), [2009] 1 FLR 8.
[13] McCartney v Mills–McCartney [2008] EWHC 401 (fam), [2008] 1 FLR 1508.
[14] [2011] EWHC 586 (Fam) [2011] 2 FLR 533.
[15] [2004] EWHC 53 (Fam).
[16] [2018] EWHC 3053 (Fam), [2019] 2 FLR 449.
[17] [2003] EWHC 611 (Fam), [2003] 2 FLR 108.
[18] [2003] EWHC 611 (Fam), [2003] 2 FLR 108. See paragraph 107(1).
[19] [2022] EWFC 41, [2023] 1 FLR 170.
[20] [2022] EWFC 41, [2023] 1 FLR 170.
[21] Mille v Miller; McFarlane v McFarlane [2006] UKHL 24.
[22] See VV v VV [2022] EWFC 41, [2023] 1 FLR 170, paragraph 48.
[23] [2003] EWHC 611 (Fam), [2003] 2 FLR 108.
[24] [2018] EWFC 84, [2018] All ER D 213.
[25] [2019] EWHC 1649 2 FLR 899.
[26] [2018] EWHC 3053 (Fam), [2019] 2 FLR 449.
[27] paragraph 52.
[28] Barder v Caluori [1988] AC 20.